Moliere v. Pennsylvania Fire Insurance, 5 Rawle 342

Moliere v. Pennsylvania Fire Insurance

5 Rawle 342

| Pa. | 1835

The opinion of the court was delivered by

Sergeant, J.

A mistake in a policy may be rectified, when it clearly appears, from the label or other satisfactory evidence, that it *347was reduced to writing in terms not conformable to the real intention of the parties. Motteux v. London, Ass. Co., 1 Atk. 545. Henckle v. Royal Exch. Ass. Co. 1 Ves. 317. I see no reason why the same thing may not be done in the present instance, by correcting the policy according to the verbal description furnished to the secretary, if the evidence shows that he omitted a material part of that description. The memorandum, which has been termed the order, possesses no greater efficacy than the policy, and may itself be corrected in the same manner. It is immaterial whose act it was; it is sufficient if the evidence shows, that ft did not conform to the intentions of the parties, whether by the mistake, or inadvertence .of the person who drew it up. It may be remarked, however, that by the conditions annexed to the policy, the secretary is designated as the person to whom the description is to be furnished. If he, acting in this capacity, undertakes to reduce the verbal particulars to writing, and file them as a memorandum or order, the insured has a right to expect he will insert all that is material; and if he omits to do so, I should deem it his act, and not the act of the insured, and that the company would, in equity, be precluded from setting up this omission, as an objection to a recovery in case of loss, in the same manner as where the policy is not made conformably to the order. The evidence to support such an allegation, ought to be clear and satisfactory. But of that, the jury were to judge. I am of opinion that the evidence was properly received, and that the rule to show cause why a new trial should not be had, be discharged.

Rule discharged.*

Judgment in this case was entered in July term, 1834,