21 Or. 179 | Or. | 1891
This is a suit to reform an insurance policy issued by the defendant company to plaintiff under the name of M. Epstein against loss or damage by fire to the
It has long since been settled that a court of equity will not reform a deed or other instrument in writing upon the ground of mistake, unless the mistake be established by clear and satisfactory evidence. (Shively v. Welch, 2 Or. 288; Lewis v. Lewis, 5 Or. 169; Everts v. Steger, 5 Or. 147; Stephens v. Murton, 6 Or. 193; Remillard v. Prescott, 8 Or. 37; May Ins. § 566.)
The rule is thus stated by Thayer, J., in Harrison v. Hartford F. Ins. Co. 30 Fed. Rep. 863: “The rule is well settled that an application to reform a written contract on the ground of accident or mistake must be supported by clear and satisfactory proof, otherwise it will not be granted. If the testimony is conflicting or of such undecisive character as to raise a substantial doubt in the mind of the court, the contract as written must stand. Besides the ordinary burden of proof which rests upon every litigant who holds the affirmative of an issue, there is in this class of cases the additional burden of overcoming the strong presumption created by the contract itself) which the proceeding seeks to reform.” We think the evidence in this case is wholly insufficient within this rule to establish that the policy of insurance should have been upon the property as a whole instead of being upon separate articles thereof in specified amounts. The testimony upon which reliance is placed to make out the alleged mistake is that of plaintiff and his wife, which is not only vague and uncertain upon the point, but is flatly contradicted by Mr. Ireland, the agent of the company who effected the insurance, and who testifies that
It follows, therefore, that plaintiff should only recover for the goods destroyed and damaged, in accordance with the insurance upon the separate articles or classes as specified in the policy, and it only remains to ascertain the amount of such damage or loss. The evidence upon this question is indeed uncertain, indefinite and exceedingly unsatisfactory, and we can only hope to approximate the amount of the loss. Plaintiff claims his damage and loss by the fire to have been about one thousand seven hundred dollars, and undertakes to give the several items going to make up the amount, with the value of each, but he is contradicted by some of his neighbors and the firemen who assisted in extinguishing the fire, and whose attention was particularly called to the matter by the unusual conduct of plaintiff at the time, and their suspicions as to the origin of the fire, as well as by the agent of defendant who effected the insurance.
But aside from the testimony of these witnesses, plaintiff’s valuations are so exaggerated and his claim so inherently unreliable on the face of it, that it is entitled to but little weight. With his family, consisting of his wife and two children, he was occupying at the time of the fire four small rooms on the first floor of a dwelling-house, which were used as a parlor, bedroom, dining-room and kitchen, the furniture of which consisted of a wool plush walnut parlor suite, one walnut bedroom suite, and cot for the children, an ordinary amount of dining-room and kitchen
His entire earnings during this time, conceding that he was constantly employed, of which there is no evidence, at the maximum amount per week stated in the testimony, could not have exceeded eleven hundred dollars, out of which he was compelled to support himself and family, so that it was impossible for him to have expended the amount of money claimed in furniture and clothing. His estimates of values are so ridiculous and out of all proportion as to afford but little if any aid to the court. For example, he testifies that one feather bed and six or eight pillows contained one hundred and twenty-five pounds of feathers, and were of the value of two hundred, or two hundred and fifty dollars; and many of his other estimates are in the same proportion. The trunk of tailors’ trimmings, stoves and some other articles of furniture were removed from the building but little damaged by the fire, and although they may have afterwards been lost to plaintiff, the defendant is not responsible for the fact that his landlord, believing the fire not to have been accidental, would not allow him to come on the premises to take them away.
Without going into details, we are satisfied from the facts and circumstances of this case as disclosed by the testimony that plaintiff’s loss by the fire did not exceed
From the record in this case we feel compelled, on this modification of the decree of the court below, to allow appellant costs in this court.