Holden v. Law Union & Rock Ins.

127 P. 547 | Or. | 1912

Mr. Justice McBride

delivered'the opinion of the court.

1, 2. If there was a mutual mistake of the parties, whereby the property insured was mis-described, there is no question as to the power of a court of equity to reform, and enforce the payment of the policy as reformed. German Insurance Co. v. Gueck, 130 Ill. 345 (23 N. E. 112: 6 L. R. A. 835); Fitchner v. Fidelity Ins. Co., 103 Iowa, 276 (72 N. W. 530); National Trades Bank v. Ocean Ins. Co., 62 Me. 519. Nor is the failure of the insured to examine his policy a bar to such a suit. Hay v. Star Ins. Co., 77 N. Y. 240 (33 Am. Rep. 607).

3. This leaves but one question to be decided: What did Blossom intend to insure, when he made the oral agreement with Holden? There can be no doubt that Holden intended to secure insurance on his own property contained in the store. Blossom made no inquiry as to the ownership of the property, or its value, and we think it fair to infer from the testimony that he was willing and intended to place $500 additional insurance upon whatever property interest plaintiff had in- or upon the premises, and that, had the description in the Northern Insurance Company’s policy been correct, he would have followed it, and the policy would have issued just the same. If the policies issued were in excess of the value of the property, the defendant would have taken small risk in so doing, as the plaintiff could have recovered merely the value of the property destroyed in any event, and the subsequent insurer would be liable only for its proportion of such value.

We think the intention of both parties was to insure whatever property interest plaintiff had in the premises, and the fact that by inadvertence that interest was mis-described can make no difference as to plaintiff’s equitable right to have the policy reformed. In other words, plaintiff intended to insure his property connected with the business in which he was engaged, and defendant was willing to insure that property, without making any inquiry as to its nature.

The decree of the circuit court is affirmed.

Affirmed.