69 Md. 437 | Md. | 1888
delivered the opinion of the Court.
The bill in this case seeks the decree of a Court of equity for the enforcement of a contract for the insurance of a cargo of lumber which was to be taken by sea from Suffolk, Va., to New York City.
In October, 1886, the appellees applied to the appellant, an insurance company in New York, for the insurance of a cargo of lumber, which was being loaded on the Schooner Sarah A. Boice, at Suffolk, Ya., and the destination of which was not fixed, but awaited
Exception has been taken to the admissibility of the evidence touching the method of dealing in respect to the risks entered in this open policy and book ; but it is very clear that the usages of the company in effecting their contracts through an open policy and book, and its agent in a city distant from the home office, must, of necessity, be receivable, iix order to apply correctly the principles of law involved for the protection of either party to the coxxtract xnade or sought to be made, as the case may be. The exception is based on the theory that it is offered to alter axxd vary the terms of a writtexx coxxtract, whereas that is not its object or effect. The object was to explaixx the method of making the coxxtract, and to assist iix determiixiixg whether according to the usages of the conxpaixy and its authorized agexxt, axx agreement had been reached that such written contract shoixld be perfected. The Judge below did not specifically pass*upon this exception, but by implication he overruled it, for he treated the evidence as before him in deciding the case, and we thixxk he was entirely right in so doing. The exceptions on the part
It is well established law that upon clear proof that a contract has been made to do something, the consummation of which involves the execution of a written instrument, which is afterwards refused to be made, a Court of equity will coerce the execution of the written contract which the parol evidence has shown was agreed upon. And, although the contract has been reduced to writing, if it be clearly shown that something has been omitted from the writing which was by the agreement of parties to have been inserted, a Court of equity will reform the contract to make it conform to the original agreement of parties. But in any such case the proof must be full, satisfactory and conclusively convincing to justify the Court's interfering. In Alexander vs. Ghiselin, 5 Gill, 138, our predecessors coerced the specific performance of a contract to create a lien, which could only be made legally effectual by a regularly executed, acknowledged and recorded mortgage. And in Ben. Franklin Ins. Co. vs. Gillett, 54 Md., 212, this Court reformed a contract of insurance by inserting a statement into the written instrument which had been omitted, and which was not discovered until after a loss wider the policy had occurred.
It is clearly stated in 1 Wood on Fire Insurance, page 29, that contracts to insure will be enforced in equity, and numerous decisions are cited in support of this statement of the law. A contract of insurance is an executed contract which can be enforced at laAv. A contract to insure is executory and requires the interposition of equity to 'give effect to the agreement of parties. 1 Wood on Fire Insurance, 29, 30, 31. “A contract of insurance is iir writing, a contract tp insure
Decree affirmed.