46 Miss. 645 | Miss. | 1872
On tke 25tk of May, 1868, Solomon Hoffkeimer, Isaac Hoffkeimer, Abram Hoffkeimer, Jokn Meyer, Max Hoff-keimer and Moity Backrack, partners in trade, domiciled and resident at Saint Louis, in tke state of Missouri, negotiating under tke name, firm and style of Hoffkeimer Brotkers & Co., filed tkeir bill in tke chancery court of Warren county against tke Pkoenix Insurance Company to reform a policy of insurance against fire, and to enforce tke payment of tke amount insured. Tke bill alleges tkat, in tke month of August, 1865, complainants started a mercantile business in tke city of Vicksburg, in tke state of Mississippi, for tke sale of liquors, tobacco, groceries and other wares and merchandise, and put tke same in charge of and under tke control and management of Philip Sartorius, as agent, at a fixed salary for his services in conducting said business ; tkat in tke months of August and September in tke year 1865, they supplied said Sartorious, agent, with a stock of goods, which was insured from time to time during tke latter part of tke year 1865 and tke year 1866.
Tkat on tke 25th of September, I860, tke said Philip Sar-torius, agent as aforesaid, applied to William A. Fairchild for insurance against loss and damage by fire on tke goods so kept by him for sale, to tke amount of $1,500, in and with tire said Fairchild, as tke legally constituted agent of tke Etna Insurance Company, a corporation doing business in said city of Vicksburg, Mississippi, through tkeir said
The bin prays that said policy of insurance, and the renewal thereof, may be corrected and reformed by inserting therein that said insurance was made by P. Sartorius, agent, or of P. Sartorius, for whom it may concern, or of P. Sar-torius, for account of complainants, or such other words as will cover and protect the interests of complainants in said goods, and that complainants may have the benefit of said policy of insurance, so corrected and reformed, and that the sum, so insured by said defendants, on said goods and merchandise, be paid to them, and for such other or further relief as may be consistent with the facts of the case.
The defendants in their answer deny that P. Sartorius ever notified them, or gave them any information, that the complainants were the owners of the goods insured. They admit, as stated in the bill, that said Sartorius did business “as agent,” both by publication and by his sign, but deny that they ever knew that he was in reality agent of the complainants, as they supposed Sartorius adopted that mode of doing business for purposes of his own, and insist that -he was the only person known to them in the transaction, and that the insurance was effected in his own name and on his own account.
Upon the final hearing of the cause on bill, answer, exhibits and proofs, the court decreed that the policy of insurance mentioned in the bill be so corrected and reformed as to express the idea that said P. Sartorius was,
There cannot be any doubt that a court of equity has authority to reform a contract, where there has been an omission of a material word or stipulation by mistake, And a policy of insurance is within the principle; but a, court ought to be extremely cautious in the exercise of such an authority. It ought to withhold its aid where the mistake is not made out by the clearest evidence; 1 Phillips on Ins. 72; 2 ib. 560; Phœnix Fire Ins. Co. v. Gunce, 1 Paige, 278. It would be a great defect in what Lord Eldon terms the moral jurisdiction of the court, if there was no relief for such a case. The cases concur in
And the doctrine is well established in this country, that equity will relievé against mistake as well as fraud, in a deed or contract in writing ; and parol evidence is admissible to prove the mistake, though it is denied in the answer; and this, either where the plaintiff seeks relief, affirmatively, on the ground of mistake, or. where the defendant sets it up as a defense or to rebut an equity. Gillespie v. Moon, 2 Johns. Ch. 585; Hillman v. Wright, 9 Ind. 126; Davidson v. Greer, 3 Sneed, 384; Lambert v. Hill, 41 Me. 475; Adams v. Stevens, 49 ib. 366.
While chancery has no power to make contracts for parties, or to substitute one for another, it can and will decree that they shall reform those which they have actually made ; and if the paper does not fulfill or violates their understanding it will be rectified and made to conform to it. And a court of equity will grant relief, in cases of mistake, in written agreements, not only where the fact of the mistake is expressly established, but is fairly implied from the nature of the transaction. 1 Story’s Eq. Jur. 161, § 162; Wyche v. Greene, 11 Ga. 171, 172.
In the case of Tilton v. Tilton, 9 N. H. 385, tenants in common agreed to make partition pursuant to the award of referees, and executed deeds for that purpose. In the deed to the complainant, a tract of land assigned to him was omitted by mistake. The parties took possession according to their deeds. The defendant in his answer denied the mistake. The court held that the mistake should be rectified, and that a specific performance of the contract, as to the tract omitted, should be decreed. But in such cases the mistake must be made out in the most clear and decided manner, and to the entire satisfaction of the court; and the proofs must be clear and convincing when the mistake is denied in the answer.
That it is usual and necessary, to insert in policies of insurance effected by agents in their own names a declaration that they are insured as agents, or for whom it may concern, or some equivalent words, or to declare specially on whose account the insurance is made, will hardly be controverted. In the case under consideration, it is admitted by the defendants in the court below by their answer, that Sar-torius did business in Yicksburg as “ agent,” both by publication and by?his. sigh. William A. Fairchilds, . agent for the Phcenix Insurance Company, states in his testimony that on the 25th of September, 1865, the Etna Insurance Company,
W. T. Page, who was an agent for several insurance companies at Yicksburg, at the time the policy of insurance was issued, states in his testimony, that if the applicant for insurance makes known to the insurance agent, that he is selling goods as agent, it would be the duty of the insurance agent to fill up the policy to the applicant as agent.
It is very clear from the testimony, that Sartorius was doing business a& agent when these policies of insurance were taken out, and that by the first of them P. Sartorius was insured as agent, and there is no perceivable reason why the word “agent” should have been omitted in the subsequent policies of insurance. There is no evidence of a change of circumstances between the issuance of the first and the subsequent policies which would authorize the underwriters to believe that there was a change of the ownership, in the interim, of the property to be insured. We are entirely satisfied that the policy sought to be corrected
The decree is affirmed.