48 F.2d 1074 | 6th Cir. | 1931
After our decision in Hartford Co. v. Jones, 15 F.(2d) 1, plaintiffs filed this bill for reformation, and the District Court awarded reformation and entered judgment for the loss. Upon plaintiff’s testimony, there was clearly an inadvertence consisting in the agent’s carelessness in not attaching the necessary indorsement as to the incumbrance. We think the reformation sought and given should have been to correct this omission, rather than by eliminating the whole provision in question; but this variance is not now material.
We do not overlook that one purpose of requiring the indorsement in writing is to prevent the need of considering conflicts in oral testimony as to whether the agent had knowledge of that incumbrance which, if not permitted by indorsement, made the policy invalid, and that, where such conflict develops, it may often, or usually, be impossible to establish this mistake with that certainty which the rule of reformation requires; but the trial judge who heard and saw the witnesses was entirely familiar with this necessity for convincing proof, and we are not satisfied that we should disturb his conclusion.
The decree is affirmed.
