Able v. Union Insurance

| Mo. | Oct 15, 1857

Scott, Judge,

delivered the opinion of the court.

It is a well settled rule that no written agreement will be reformed unless the evidence produced to show the mistake is clear and satisfactory. It would seem to follow, as a consequence from this principle, that the party seeking to correct a mistake in the terms of a written contract should state in plain and precise language the contract as it was made and understood hy those who are to be bound by it. The evidence in support of a contract can scarcely be clear and satisfactory when the terms of the contract themselves are doubtful and uncertain. In the amended petition it is averred that the defendant “ agreed to insure and did in fact insure the plaintiffs against total loss on their said freight list from St. Louis to Fort Pierre, against fire and the perils of navigation.” After this there comes the following averment: “The defendant received the amount of premium agreed upon, and by its agent agreed to insure and did in fact insure the plaintiffs against total loss from fire and the perils of navigation in the sum of $3333 on the freight list of the said boat from St. Louis to Fort Pierre aforesaid.” It is further averred that the defendant agreed to make, execute and deliver to the said Barton Able a policy pursuant to said agreement as soon as the same could be done, and deliver the same to him.” After these averments respecting the contract which was really made between the parties, the petition complains that a policy was delivered to the plaintiff, acting for himself and others, at a time when his engagements did not afford him an opportunity for examining it, which contained the following “ most unreasonable, unusual and unjust clause,” to-wit: “ This insurance is declared to be upon the freight list of the steamboat Australia and only against the absolute total loss of the boat by burning or sinking.” The plaintiffs aver that their contract and agreement with the defendant was “ that they were insured by the defendant against a total loss of their freight list by the burning or sinking of said boat.”

It will not be- maintained that the contract last stated by the plaintiffs is consistent with the contract stated in the beginning of the petition. But independently of the difficulties which arise from the face of the petition to granting the relief prayed — which makes it a matter of uncertainty as to what was the real contract between the parties — the evidence, taking it in the most favorble light for the plaintiffs, shows that the contract as agreed upon was a policy on an “ absolute total loss only” of the freight list, leaving it to be inferred that it was against the usual perils insured against in the navigation of our inland waters. Thus the evidence on which the plaintiffs rely does not prove that the contract should be reformed as they pray that it may be. To say the least of it, the circumstances, all considered, make it a matter of uncertainty whether the parties ever understood each other in relation to the terms of any agreement. The other judges concurring, the judgment will be affirmed.