59 Pa. 227 | Pa. | 1868
The opinion of the court was delivered, January 5th 1869, by
It is contended that the evidence contained in the bill of exceptions admitted by the court and submitted to the jury, tended to contradict, vary or alter the policy of insurance, which was the written contract between the parties, without evidence of fraud, accident or mistake. But was this so ? Did not the evidence, if believed, clearly show a mistake by the agent of the insurance company in drawing up the policy ?
If so, then beyond a question it was admissible on all the authorities in this state, from Hurst’s Lessee v. Kirkbride, in 1773, cited in 1 Yeates 139, 1 Binn. 616, down to Fisher v. Deibert’s Adm’rs., 4 P. F. Smith 460, in 1867. Indeed, it results of necessity from the fact that equity always was part of the law of Pennsylvania. During the larger part of our juridical history we had no separate court which could by an appropriate decree order an instrument which had been drawn by mistake to be reformed so as to express truly the real understanding and intention of the parties. There was no other mode of reaching a result so essential to justice, except by the admission of parol evidence, though it might contradict, alter or vary the legal effect of the deed or contract.
Webster and Cross were partners in trade, and the merchandise insured was firm property. It is denied that Webster, as a partner, had an insurable interest in the entire stock, and had a right to insure his partner’s interest as well as his own. The interest of each partner in the assets of the firm is not a title to any aliquot part, as a half or a fourth. Each partner being liable in solido for the engagements of the partnership, has a right, which is termed his equity, because in England it was administered only in the Court of Chancery, to have the firm assets applied in the first instance to the payment of the firm debts — an equity through the instrumentality of which the partnership creditors have a priority over separate creditors to be paid out of the partnership funds. The interest of a partner is therefore only such a proporción of the capital and profits as by the original articles or agreement he may appear to be entitled to receive after all the debts are paid, and the affairs of the concern liquidated and wound up. It is plain, then, each partner has an insurable interest in the entire stock, and on receipt of a loss on insurance must account therefor to the partnership.
This is admitted by Marshall, C. J., in the leading case cited and principally relied on by the counsel of the plaintiffs in error: Graves v. The Boston Marine Insurance Co., 2 Cranch 419. It was, indeed, the very point decided in Page v. Fry, 2 B. & P.
“ There can be no doubt,” says Kent, C. J., “ that a partner has such an interest in the entirety of the cargo as to enable him separately to insure it, and that an averment that he had an interest in the property to the amount of the insurance is supported by proof of a partnership interest to that amount.”
The only question as to which the authorities do not seem to be perfectly in accord, is as to whether the names of all the partners must be inserted in the policy, or it must expressly insure the entire interest of the partnership: 1 Phillips on Ins. 160-1; 2 Duer on Ins. 74. Now, the offer of evidence below was to show by persons present when the insurance was effected by the agent of the insurance company, “ that it was stated by Mr. T. Webster that the wool proposed to be insured was owned jointly by himself and William Cross, and he wanted to insure the interest of both ; that the agent said it was not necessary to put both their names in the policy; their joint interest could as well be insured in the name of Webster as to have both names in the policy.”
Assuming it to have been necessary that the names of both the partners should have' been inserted in the policy, it is difficult to perceive how the evidence of a mistake in drawing the instrument could have been more distinct and unequivocal than that here offered to be given. The testimony adduced fully sustained the offer, so that a chancellor would have considered it amply sufficient on which to found a decree for the reformation of the contract. Tibbals, the agent of the insurance company, himself testified: “I intended that Webster should understand the contract as I did, that the policy covered the whole interest in the wool. I said to Mr. Cross I had insured that wool. I never denied I had insured the whole amount of the wool. I understood all the time the interest of Cross was insured the same as Webster’s, although he denied that he had conveyed to Webster the idea that it made no difference whether Cross’s name was in the policy or not, as the subject was not mentioned; yet Robinson, a witness present on the occasion, said distinctly that Tibbals told Webster it would make no difference whether Cross’s name was in the policy or not, if loss should occur; and two other witnesses testified that Tibbals had admitted the same thing to them.
This view of the case disposes of all the assignments of error except the 6th, which is that the learned judge erred in that part of the charge in which he said: “We thought the evidence going to prove this state of facts admissible, and now think it entitles the plaintiff to recover the full value of the wool.” It is objected that this was taking the case from the jury — that, admitting that the evidence had been properly received, its weight and sufficiency were with them, and that it was not for the court, there
Judgment affirmed.
MEMORANDUM.
October 26th 1868. Henry W. Williams, commissioned an associate justice of the Supreme Court in the place of William Strong, resigned, having taken the oath of office, which was administered by Chief Justice Thompson, this day took his seat.
