delivered the opinion of the court.
This was a bill in equity on a policy of insurance made by the defendants. The original policy, executed September 27th, 1835, for one year, and annually renewed till September, 1838, contained the following clauses : — “ And provided further, that in case the insured shall have already any other insurance against loss by fire on the property hereby insu.Ped, not notified to this corporation, and
mentioned in or indorsed upon
this policy, then this insurance shall be void and of no effect. And if the said insured, or their assigns, shall hereafter make any other insurance on the same property, and shall not, with all reasonable diligence, give notice thereof to this corporation, and have the same
indorsed on this
instrument,
or otherwise acknowledged by them in
writing, this policy shall,cease and be- of no further effect.” A loss having occurred on the 9th of April, 1839, an action at law was instituted, to recover the amount of the defendants, on which final judgment was rendered in their favor in this court, at the January term, 1841. (See Carpenter v. Providence Washington Ins. Co.,
For various other particulars connected with the case, reference • can be had to the above case, and the statement which precedes this opinion. Under these "circumstances, the complainant next resorted to the bill now in consideration, and alleged, that “ in the month of December, A. D. 1836, and in the month of December, A- D. 1837, and at divers other times, the said Providence Washington Insurance Company had notice from the said H. M. Wheeler & Co. of the said insurance at the office of said American Insurance Company, in Providence, and' said notices, so given, were given for the purpose of having the same indorsed on the policy at the office of said Providence Washington Insurance Company, or otherwise acknowledged by them in writing. And your orator supposed that the said Providence Washington Insurance Company had performed their part of said contract in this behalf, as in equity and good conscience they were bound to do.”
He then added, — “Wherefore, inasmuch as your orator is *217 remediless at and' by the strict rules of thé common law, he prays your honors to issue a decree compelling said Providence Washington Insurance Cpmpany to indorse said, notice on. said policy, or otherwise acknowledge the same in writing, according to the terms of their policy, as they long since .ought to have done, and to compel said Providence Washington Insurance Company to pay your orator said sum of fifteen thousand" dollars, with interest from the time of said loss, and his costs.?’
The defendants, in their answer,- deny that they ever had notice in any form of the additional insurance, or riot till long after the execution of the policy now in question, and object to the admission of any evidence on tile subject, except such as is in writing, according to the stipulation in the policy itself. And they further deny,' “ that the plaintiff hás any equity to compel these defendants to indorse a notice of such previous or subsequent insurance on said policy, or to acknowledge the same in writing.”
They then aver, that if the additional policy had. been communicated to them, and the present insurance still continued, it would, have been void, because false representations, material -to the risk in respect to-the value of the whole property, were made, affecting the additional policy, and that the probability is, the present one, would-not have been continued on -seeing the additional policy, as that is for $ 6,000, and the present one $ 15,000, making an aggregate insurance of $21,000, when, in the original statement to the defendants, the whole property was valued at only $ 19,000, and when it is hot the custom-of insurance companies to take risks on this kind of property beyond three fourths of its value, in order to keep the insured still interested to the extent of the other fourth, and thus likely to use greater precautions against fire, and lessen the risk of the insurers, compared with what it would be if an additional insurance was obtained cohering the whole value.
It will be seen, by this state of the case, that important questions, both of fact and law, are involved in it; — of fact-, whether the additional policy was ever made known to the defendants for the purposé of being acknowledged in writing ; and of law, whether, in --'that event, it was their duty so to have acknowledged it, and, not doing so, whether this court can now compel them to do it. There are other,considerations which arise in the course of the inquiry that will deceive attention, but are incidental, rather than raised directly through the pleadings.' The testimony in support of the leading allegation in the bill is not very complicated. But how much of evidence should be required to prove that allegation, under the principles applicable to the circumstances' of this case, is one of some difficulty, and is first to be settled. Where an answer is responsive to a bill, and, like this, denies a fact unequivocally and under oath, it must in most cases be proved not only by the testimony of one witness, so as to neutralize that deni
*218
ai and path, but by some additional evidence, in order to turn the scales for the plaintiff. Daniel
v.
Mitchell, 1 Story’s Rep. 188 ; Higbie
v.
Hopkins, 1 Wash. G. C. R. 230; The Union Bank of Georgetown
v.
Geary,
But a part of the cases on this subject introduce some qualifications or limitations to the general rule, which are urged as diminishing the quantity of evidence necessary here. Thus, in
The next inquiry is, whether the material allegation in this case is thus proved ? On an examination of the evidence, it will be found that not even one witness swears positively to it; and Whatever is sworn in support of' it is much impaired by other proof.
The allegation, it will be remembered, is, that in December, 1836, and divers other times, the defendants had notice from the insured of the second insurance, given for the purpose of being indorsed on the policy, or acknowledged in writing.
There is no attempt to prove any such notice except on two occasions, —one in 1836, and one in 1837. The only witness called to support the first is Mr. Wheeler. He testifies, that about the time of the second insurance, in December, 1836, he wrote a letter to the president of the Providence Washington Company, stating that such an insurance had been .effected, and thinks he put the letter in the post-office. This is all on that point in behalf of the complainant concerning this notice.
It is to be observed, that the testimony of Wheeler, in its full extent, does not prove the fact that information of the second insurance ever actually reached the defendants for the purpose of being indorsed or acknowledged, but merely that a letter was written for that purpose, and probably put in the post-office.
Though such evidence, standing alone, in the case of notice of non-payment of bills of exchange and promissory notes, is sufficient, under mercantile usage, to raise a presumption that the holder had used due diligence, yet even in such cases, it is not held.to prove the actual receipt of notice. The Bank of Columbia
v.
Lawrence, 1
*220
Peters, 582, and Dickins
v.
Beal,
Whén we look for any .other proof to sustain or strengthen Wheeler’s evidence, thus defective, it will appear to be weakened rather than strengthened by the other testimony and circumstances. Because, first, such a letter, if ever received, would probably be preserved on the files of the office.- So would it probably be answered, as that was not only the usage in respect to all letters on official business, but it. is shown, specially, to have been .the custom of the office to act forthwith and officially on letters like these when received, and to send a reply in conformity to the decision of the company upon them. Yet no answer is stated ever to have been received concerning this ; nor is any trace of an answer, or of the original, found in the office, either in the. recollection' of other officers, or in any files, "books, records, or even memoranda.
. Again ; the insured, if conscious that such a letter had been sent, and reached its destination without being answered, would naturally have written-, or called to ascertain, why information of the second insurance was not acknowledged in writing, apprized as the insured must be, both by the published terms of insurance and the policy itself, that the latter was void and ceased to operate without such an acknowledgment, and that it was the duty and interest of the insured to see to this acknowledgment being made Nor is it a sufficient answer to the last objection, that he might rest quiet without a reply, supposing the acknowledgment had been indorsed on the policy, because the policy was in the possession of the insured, and not of the insurers ; and hence it was well known to the insured that no such indorsement had been made on that.
It is difficult, likewise, to discover any adequate motive for not replying to the lettei, If it was ever received, unless it be one resting on a gross fraud. If the company, or its president, on a receipt of it, should not choose to continue the policy, as would probably be the case, for reasons before mentioned, they would feel no reluctance to state the fact to the insured, and thus end a risk where the insurance exceeded the value of the property, and differed so ■ much from their usual prudent terms of underwriting. But if they did choose to continue'it, they would be likely soon to reply, stating that fact, because, Without such a reply, they knew the insured would probably consider the policy terminated, in conformity with the stipulations in it, and would insure elsewhere, and they lose a premium which' they had decided it was expedient for the company to retain.
This is all which it is considered necessary to say in respect to the evidence of the notice supposed by the plaintiff to have been given bv Wheeler in 1836.
*221 But it is5 urged, beside this, that another notice of the additional insurance at the Providence American Company was given, the ensuing year, in December, 1837, through Mr. Peck. It is manifest, however, that this last notice, like the other, must stand or fall by itself, as they are distinct or disconnected in time and circumstances, — not parts of one transaction, —and are attempted to be sustained by testimony not cumulative but entirely different. What is proved on this matter by Mr.‘reck ? Merely that a letter, written to him for another purpose, contained a statement of the existence of the second insurance, and his impression that he showed the letter to the president of this company for the other purpose. It will be seen that his testimony is rather argumentative from his usual habits of business, than positive, that he showed the letter at all to the president; but if he did, it is conceded that the object was to communicate merely the other fact, — “the change of owners in the property ” (see Wheeler’s letter). And if he carried .the letter in his hands, which contained other matter, mentioning an insurance at .the Americán- Office, he was not desired, as appears by the letter itself, to communicate that part of it, nor does he say, in. his written reply, that he had communicated that part, but only “ notified .the Providence Washington Insurance Company, that Mr. Wheeler had disposed of his interest to you, of which they had made record.”
Beside this, and against any such notice having been given or intended for the purpose set up in this bill, there are most of the collateral considerations which have been enumerated in opposition to the other notice, alleged to have been given the previous year.
It must also bé recollected, that a letter was written to the president by Wheeler on the same day he wrote to Peck, saying nothing in it concerning any second'insurance ; and the president promptly answered it, saying nothing in reply concerning that subject, but all which was expected as to the other. On this, it will occur immediately to ask, if Peck had given such notice, or been requested to do it, or even if Wheeler had before given it, why Wheeler did not at once write again, stating that an answer had been received as to the notice of a change of property, but none as to the second insurance. In short, a convincing proof that nothbg was communicated but the change of owners in the property is, that nothing more seems intended to have been communicated ; that nothing more was contained in the letter to the president, and nothing more wished to be stated by Peck, and no witness testifies that the other information was actually read by, or named to, the president, and no collateral fact renders the last circum-. stance probable. This is the whole evidence in the case, on this pobt, that is essential. To show more fully that under it none of the material questions of law arise or can be considered, which might otherwise be presented, it may not be unimportant to diserim *222 inate and examine briefly what those questions are, and what must, be proved in order to raise them.
Several precedents exist, where respondents in equity are allowed, by way of defence, to prove, by parol, that the written contract relied on does not contain all the original terms ¿greed, and in this way entitle themselves to be exonerated under the terms proved- by parol. (Woollam v. Hearn, 7 Ves. 211 ; 2 Story’s Eq. Jurisp. § 770 ; and Sugden on Vendors, 125 to 140, and cases cited.) Others exist, of this kind of- proof being at times permitted to complainants in relation to separate subsequent terms of agreement modifying the prior ones, and on those subsequent terms.being proved by parol, a recovery be allowed. 4 Bro. Ch. R. 514 ; i ibid. 92. There are other precedents of complainants seeking to show by'parol a portion of a contract existing when the original was made, but which was omitted from it by accident, and against doing which some of the authorities seem to decide. (7 Ves. jr. 211; 15 ibid. 518 ; Story’s Eq. Jurisp-. § 770, and note.) On the contrary, some decide for it. (2 Ves. sen. 375 ; 1 ibid. 456 ; 1 Starkie on Ev. 1015 — 1018.) But neither of these classes of cases can be claimed as embracing this. Here the parol proof is offered by a complainant, rather than by way of defence ; and it is not pretended that any omission has happened of a part of the original contract, or that there has been any new separate contract modifying that.
On the contrary, in the most natural aspect of the case, it is one of a complainant attempting to show, by parol, a fact, which, if true, is supposed to establish a neglect or wrong in the defendants,— a breach.of official duty happening sometime after the contract of insurance was made, — by not acknowledging then in writing the receipt of information that another policy had been obtained on the property, and saying in reply, under these new circumstances, that the first contract should either continue or terminate.
This presents, it will be seen, a question somewhat novel, namely, whether the specific performance of a duty in private life, not of a contract, can be enforced by courts of equity, and a party compelled, by a sort of mandamus, to acknowledge in writing what he had never, promised so to acknowledge.
That question, however, need not now be decided, as such a duty is not claimed to exist except where a notice of the second insurance is actually received. And to prove such a receipt here, the evidence offered' is certainly insufficient, whether requiring only one positive witness, unimpaired, or something-more than one.
But there is another aspect of the case, which would present a different question of law, if it was set out specially in the bill, and was supported by any stronger proof as to the material fact. It is,, that the respondent should be considered as barred or estopped *223 from setting up the want of an acknowledgment in writing, if that want was the result of his own neglect of duty. In that view, both the receipt of the information, and a consequent obligation to-make an acknowledgment of it in writing, must be satisfactorily established before any neglect of duty can be imputed. But, as already shown, the first fact, the receipt of the information, is not established in that manner ; and, if it were, some difficulty might exist as to the second point, in considering a mere omission to reply as a wrong, and such a wrong as to estop the insurers from making an objection éxpressly provided for and allowed in the policy. Because it is not the insurer, but the insured, on whom the obligation seems to be imposed to have the notice of the further insurance reduced to writing, as a condition precedent to a recoveiy. It is the insured who by that further insurance increases the risk of the former insurers, and who ought, therefore, to have it -both communicated and acknowledged in the manner stipulated, in order to render it' sure that a continuance of the first risk is assented to. And though an omission to answer a letter from the insured might incommode him, and be a breach of comity, it is not easy to discover any engagement or promise which it violates.
Supposing, however, the bill to be broad enough in its allega-, tions, and the sending of notice of the second insurance proved, and the duty to acknowledge it, if received, to be clear, .we might, in most cases like this, enforce a discovery of the receipt of it, if coming to hand ; and might enjoin the insurers against using, by way of defence, a circumstance caused by their own misconduct. (Baker
v.
Biddle, 1 Bald. C. C. R. 405.) But whether we could go further, and enforce a recovery for the loss on the equity side, of this court, when an action had been brought for it on the law side and failed, and other remedies there may still exist for any wrong done, is a. question open to doubt, and need not, for the reasons before stated, be now decided. Le Guen
v.
Gouverneur,
Finally, it is urged, that a fraud has been perpetrated here, and that frauds constitute at all times a distinct and sufficient ground for a recovery in chancery. The fraud, if existing here, would not be in failing to answer the receipt of information of the second policy, stating frankly, as convenience and a spirit of courtesy required, whether the original insurance would be Continued longer or not; but in omitting to give full explanations on the subject when the insured applied for a renewal of the policy, and in proceeding then to take a further premium, with a covert design to defeat the insurance on account of the second policy, provided any loss should happen.
The rule of equity is very broad to prevént a fraud, which would exist if one was permitted “to derive a benefit from his *224 own breach of duty and obligation.” 2 Story’s Eq. J'urisp. § 781. And it has been laid down, that “if by fraud or misrepresentation one prevents acts from being done, equity treats the case as if it were done.” 1 ibid. §439 ; 11 Ves. 638.
In the bill, there is an averment of fraud, and, at the'close, a general prayer for .any suitable relief; and it seems plausible, that we might, if satisfied of the existence of fraud, estop the party guilty of it from profiting through his own wrong, by preventing him from setting up, as a defence, the'want of an acknowledgment in writing, when such want was the result or the instrument of his own misbehaviour. But there is still a difficulty in this view of the case, from the circumstance that redress has been and still is open to the plaintiff, at law, for any fraud ; and the Judiciary Act provides, that “ suits in equity shall not be sustained in either of the courts of the United States, in any case where plain, adequate, and complete remedy may be had at law.” (Act of September 29th, 1789, §16 ;
It is a matter of regret, that so great a loss, which the plaintiff and those under whom he claims intended to guard against by insurance, should happen entirely without indemnity. But it is to be remembered, that the defendants gave abundant and repeated notice to him in writing and print in the policy itself, as well as other ways, that they would not take any risks on property where it was insured beyond a certain ratio of its full value, unless the circumstances were made known to them, and the additional-policy recognized in writing, so as to avoid any mistake, or accident, or want of deliberaré attention to the subject.-
If the plaintiff, after all this, emitted to comply with so substantial a provision in the contract itself, as we are hound to believe on the evidence now offered, we see no way, equitably or legally, to prevent the conséquences from falling on himself, rather than others, being the result either of his own neglect, or that of some of the agents he employed.
An adherence to such important rales is peculiarly necessary for the protection of absent stockholders, often interested extensively *225 in insurance companies ; and so far from its being unconscientious to enforce them, when their existence is well known, and when the risk has been .increased without conforming to them, it is the only and just safeguard of all concerned in such institutions Let the judgment below be affirmed.