Blake Opera House Co. v. Home Insurance Co.

73 Wis. 667 | Wis. | 1889

Cassoday, J.

It was certainly competent for the parties to make the contract of insurance in the form it was executed. This is, in effect, conceded. Undoubtedly, it would have been competent for the defendant to have insured BlaJce's interest in the company as a stockholder by a policy issued directly to him, if such had been the contract. It is claimed that such was in fact the contract made, but that by reason of a mistake in writing the policy it was issued to the company and insured its property against loss by fire, with the “ loss, if any, by request of the assured, payable to L. S. Blake” aforesaid. Until reformed, the policy as drawn was certainly conclusive upon all the parties that the contract was with the plaintiff company and insured its property against loss by fire. Gillett v. Liverpool & L. & G. Ins. Co., ante, p. 203. The learned counsel for the defendant concedes such to have been the presumption until overborne by the testimony. It is, moreover, conceded that such proofs, to overcome such written evidence, “must be entirely plain and convincing beyond reasonable controversy, otherwise, the writing will be held to express correctly the intention of the parties.” This reduces the whole question involved to one of fact, to be determined from the evidence. After a very careful reading of the printed case we are unable to hold that there is any such clear preponderance of evidence of mistake as would authorize us to disturb the findings; on the contrary, we are forced to the conclusion that the findings are supported by the evidence. A discussion of the facts would be of no benefit to any one.

By the Court.— The judgment of the circuit court is affirmed.