134 A. 774 | N.J. | 1926
The bill in this case was filed by the complainant-respondent for the purpose of having a policy of insurance reformed which had been issued by the defendant, the Fidelity and Deposit Company of Maryland, to Thomas Sardo, the complainant-respondent. It appears from the proofs in this case that Thomas Sardo, the complainant, desired to obtain insurance against theft on his stock of jewelry in a store in the city of Paterson, New Jersey, which business was there conducted by him. Sardo applied for such insurance to one Lederer, who took him to a man named Mellor Newman. Newman, whose office was in the city of Paterson, was an agent for the defendant company. Newman told the complainant that he had authority to write burglary insurance, only, and that he would confer with the company concerning the kind of policy which Sardo desired. It appears that the issuing office of the company for the Paterson district was under the management of one Brush at Newark, New Jersey. Brush, prior to the issuance of the policy, visited the complainant's place of business for the purpose of investigating the risk. The company, after these negotiations with the complainant, through the several agents, issued a policy of insurance covering money and securities of the complainant, but not including jewelry. Mellor Newman received the policy, examined it, observed its language and scope, but concluded that, as he had applied to the company for a policy covering jewelry, the words "money and securities" embraced within their meaning also jewelry. Newman turned over this policy to Lederer, who was not an agent of the company, but evidently an insurance broker with whom Sardo transacted business. Lederer did not examine the policy, but gave it to Sardo, and Sardo did not read it, but assumed that it covered jewelry. In this policy, which was delivered to Sardo, the word "securities" is defined as follows:
"`Securities,' as used in this policy, shall mean only such bonds, debentures, checks, coupons, demand and time drafts, promissory notes, bills of exchange, warehouse receipts, bills of lading, express *334 and postal money orders, certificates of stock and deposit, and other instruments as are negotiable, and as respects which, when negotiated, the assured has no recourse against the innocent holder."
Sardo paid the agent the usual premium or charge made by the company for the kind of policy which was actually issued to him.
Subsequently there was a robbery of Sardo's store, and a considerable amount of jewelry was stolen therefrom. It further appeared that when the complainant, Sardo, applied to the agent of the company for the issuing of the policy that the agent had knowledge that there were no securities in the complainant's store. Basing his opinion largely upon this fact, the vice-chancellor concluded that Sardo, the complainant, was entitled to have the policy of insurance reformed to include the item of jewelry. Thereupon, a decree was made, striking from the policy the words "securities" and inserting therein the word "jewelry," so that the said policy should read "money and jewelry," instead of "money and securities." From this decree the defendant appeals.
We think the conclusion of the vice-chancellor was erroneous. It is not contended in this case that there was fraud practiced by the defendant upon the complainant, nor did the complainant attempt to rescind the contract. There is no suggestion that the officers of the company or any agent representing them in the writing of this policy understood the policy was to cover anything more than was expressed in it, to wit, money and securities. The rule laid down in this state is, that in order to reform a contract of insurance or other written contract in the absence of fraud on the part of the defendant it must appear that the minds of the parties to said contract have met and that a mutual mistake of the contracting parties has been made in writing out the contract, so that the parties appear to have entered into a contract, which they have not entered into. The reformation, therefore, of such a contract must be to make the written contract to conform to that upon which the minds of the parties have met. It cannot be said in this case that because the complainant assumed that the word "securities" included jewelry, *335
or because he did not read the policy, that the defendant intended that the word "securities" was to include the word "jewelry." Mr. Justice Depue, in speaking for this court, in the case of Green v. Stone,
Chancellor Walker, in speaking for this court in the case of the Crescent Ring Co., Inc., v. Travelers' Indemnity Co.,
The decree of the court of chancery will therefore be reversed.
For affirmance — MINTURN, KALISCH, LLOYD, VAN BUSKIRK, HETFIELD, JJ. 5.
For reversal — THE CHIEF-JUSTICE, TRENCHARD, PARKER, BLACK, KATZENBACH, CAMPBELL, WHITE, GARDNER, McGLENNON, KAYS, JJ. 10. *337