74 Fla. 371 | Fla. | 1917
On July 12, 1915, D. Rosenthal filed a bill of complaint against the insurance company in which it is alleged that on April 6, 1915, complainant “had a two-story frame building with a shingled roof, which building was the property of your orator, together with a certain stock of merchandise and certain store furniture and fixtures located therein; said building being located at 909 South Lafayette Street and situated upon the following described property in Hillsborough County, to-wit: Beginning at the Northeast corner of Lot One (1)
“This defendant further answering the bill of complaint, wherein the complainant alleges that thé said premises originally belonged to E. Rosenthal, who was the wife of this complainant, but after her death the said business was continued in the same name, neither admits
“This defendant denies the facts as set forth in the bill, in which the complainant alleges: that he was trading under the firm name of R. Rosenthal & Son, which was known to the defendant’s agents, when the said policy was issued. * *
“And this defendant further answering said' bill of complaint, wherein it is claimed that at the- time of the execution of said policy, that the-‘condition of the complainant’s title to said property was known to defendant’s agents, and that through mistake and error on the part of defendant’s agents there was no endorsements made upon said policy and attached thereto, and there was no written agreement endorsed thereon, or added thereto, stating that the said building, or property therein, could be insured on leased land, denies the allegation; and states the true facts to be that the policy issued and attached to- the bill of complaint herein, contained the real contract entered into by R. Rosenthal & Son, and this defendant, through its agents, Hatton Brothers; and this defendant alleges that the said defendant did not through mistake or error fail to attach any agreement that the said insurance could be had upon property now owned by R. Rosenthal & Son; but that it was the áim and purpose of said policy to be just as it is and was worded, and that the policy as written is in accordance with request of R. Rosenthal & Son, and said policy was issued, delivered and accepted by R. Rosenthal & Son, without objection, until after the fire, and that there was no mistake as to the issuance of said policy; that it was not the agreement or intention of the defend . ant to issue a policy upon a buildins located upon, leased ground, but that the policy as issued and attached.
“This defendant further answering says that, the policy in question contained an acknowledgment on the part of E. Rosenthal & Son that they were the owners in fee simple of the land upon which the building in question was located, and that said policy was issued with the understanding that E. Rosenthal & Son were the owners in fee simple of said property. The policy contained the following provision: ‘The entire policy shall be void, if the subject of insurance be a building on ground not owned by the insured in fee simple.’ And that the policy in question provided that if they were not the owners in fee simple of the property, then the said policy should be null and void. And this defendant says that neither E. Eosenthal & Son, nor E. Eosenthal, nor D. Eosenthal rvere the owners in fee simple of said land upon which the said building and contents were located. This defendant further says that it would not have issued said policy of insurance on the merchandise and fixtures had it known that the said E. Eosenthal & Son were not the owners of the land upon which the building was located. And having learned that the complainant is not the owner of said land hereby declares the policy void and tenders into court the premium of $60.00 paid on said policy.” There were other allegations not essential here.
Testimony was taken before a master, and on final hearing the court decreed that “the court is of the opinion that the equities of the cause are with the defendant, and that the complainant herein has failed to sufficiently establish by the testimony the material allegations of his bill of complaint to the effect that there was a mistake made by the insurance company in. writing the
On appeal taken by the complainant the errors assigned are that the court erred in rendering the decree, in denying the relief prayed, and “in ignoring the items of fixtures insured by the policy.”'
Where because of- fraud .or mutual mistake a policy of fire insurance does not express the contract entered into by the parties, a court of equity may reform the policy so that it shall express the contract intended to be made, and in the same suit may enforce the obligations of the policy. Unless the complainant by appropriate allegations and proofs show that he is entitled to have the policy reformed, the policy cannot properly be enforced in the equity suit and the bill should be dismissed.
Where by the inadvertence or otherwise a policy of fire insurance is issued contrary to the intention of the parties thereto, a court of equity may in a proper case reform the policy so as to make it express the real agreement and intention of the parties, and as so reformed to enforce the policy in order to' do complete justice in the controversy. The right to the reformation of an instrument is not absolute, but depends on an equitable showing. Phoenix Ins. Co. v. Hilliard, 59 Fla. 590, 52 South. Rep. 799; Southern States Fire Insurance Co. v. Vann, 69 Fla. 544.
In reforming a policy of insurance, like that of any other written contract, the want of conformity to the agreement of the parties must be occasioned by a mistake which is mutual and common to both parties to the instrument. A mistake on one side may be a ground for rescinding, but not for reforming, the contract, where
Equity will reform a written instrument when by mistake or fraud it does not contain the trué ágreeínent of the parties; but it will only do so when it is satisfactorily made to appear that a mistake has been máde or a fraud committed for the,writing should be deemed to be the sole expositor of the intent of the parties until the contrary has been established beyond treasonable controversy; and in such a case the burden is upon the complainants to establish the facts relied on for reformation by clear and satisfactory evidence. Griffin v. Societe Anonyme La Floridienne, 53 Fla. 801, 44 South. Rep. 342; 34 Cyc. 980.
In a suit for the reformation of a written instrument, when the evidence is conflicting and the finding of the chancellor thereon does not clearly appear to be erroneous, it will not be disturbed on appeal. Robinson Point Lumber Co. v. Johnson, 63 Fla. 562, 58 South. Rep. 841.
Where the chancellor upon a consideration of the evi
It is alleged “that through mistake and error on the part of the defendant’s agents” the policy does not “express the true agreement of the parties,” that the property insured is “upon leased premises,” and reformation in this particular is prayed. The chancellor specifically states that “the complainant herein has failed to sufficiently establish by the testimony the material allegations of his bill of complaint to the effect that there was a mistake made by the insurance company in writing the policy sought to be reformed, as expressed in the bill.”
A careful consideration of the evidence does not lead to the conclusion that the chancellor clearly erred in his specific finding, and in accordance with the established rule in such cases, the finding will not be disturbed by the appellate court, the testimony being conflicting and unconvincing and the burden of proof cast by law upon the complainant not being -clearly sustained. Complainant not being entitled to reformation, there is no basis for relief in an equity form and the decree is affirmed without prejudice to any right of action at law the plaintiff may have.
It is so ordered.