Able v. Union Insurance

1. Reformation of a written agreement on the ground of mistake will be decreed only when the proof of the mistake is clear and satisfactory. 2. Where the reformation of a written instrument is sought, the petition should state the terms of the contract as sought to be reformed with certainty.

Error to St. Louis Court of Common Pleas. This was an action on a policy of insurance on the freight list of the steamboat Australia from St. Louis to Port Pierre, on the Missouri river. The policy was made out “ against the absolute total loss of the boat by burning or sinking.” The prayer of the petition was twofold; first, for a reformation of the policy by making it declare the insurance to be “ against absolute total loss only,” and secondly, for judgment as for a total loss. The case was tried by the court sitting as a jury. The court found the facts and rendered judgment thereon for the defendant. I. The policy in question does not contain the terms of the agreement entered into by the parties, but on the contrary contains a clause wholly at variance with the agreement, and if sustained would render the policy utterly valueless to the plaintiffs as a contract of assurance. The clause in the policy declaring the insurance to be “ against the absolute total loss of the boat” was wholly unauthorized and in direct violation of the agreement between the parties. The testimony shows indisputably that the agreement between Able and Risley was that the plaintiff should be insured against a total loss of the freight list. Not one word was said, nor even an allusion made to the loss of the boat. The freight list was the subject insured. The defendant by agreement insured the plaintiffs against loss on their freight list, received their money for the premium, and after this, without the knowledge or consent of plaintiffs, inserted a clause in the policy which was not contemplated and which destroyed the original agreement between the parties. I. There was no case made for reforming the policy. (Lyman v. U. S. Ins. Co. 3 Johns. Ch. 630; Gillespie v. Morn, id. 585 ; Henkle v. Royal Exch. Ass. Co. 1 Yes. 317; Andrews v. Essex E. & M. Ins. Co. 3 Mas. 6.) II. The charter of the company requires all the contracts of insurance to be in writing. If the proof would authorize the court to reform the policy, still the plaintiffs could not have relief, for there is no power in the court to decree that the plaintiffs may recover upon a different contract from that stated in the policy. (2 White’s Lea. Cases in Eq. 571; Miller v. Chetwood, 1 Green Ch. 199 ; Best v. Stow, 2 Sandf. Ch. 298 ; Chetwood v. Brittan, 1 Green Ch. 438; Elder v. Elder, 10 Maine, 80 ; Jordan v. Sawkins, 3 Brown Ch. Cas. 388 ; 1 Yes. 402; Rich v. Jackson, 4 Brown Ch. Cas. 514; Clinan v. Cooke, 1 Sch. & Lef. 22; Woollam v. Hearne, 7 Yes. 516; Dwight v. Pomeroy, 17 Mass. 303 ; Osborne v. Phelps, 19 Conn. 63 ; Brooks v. Wlieelock, 11 Pick. 439; Westbrook v. Harberson, 2 McCord, 112.) III. If the policy is to stand as it is, there can be no recov ery, for there was no absolute total loss of the boat. IY. If the policy is to be reformed, it must read so as to insure against “ an absolute total loss only,” and in that case there can be no recovery, because, 1st, the plaintiffs could not abandon for a technical total loss. (Willard v. M. and Man. Ins. Co. 24 Mo. 561.) 2d, The defendant did not contract that the boat should earn freight within any given time. The plaintiffs were not therefore authorized to abandon the voyage on account of a detention of the boat for a long or shorter period. The plaintiffs took upon themselves the chances of a short or of a protracted voyage. (Jordan v. Warren Ins. Co. 1 Story, 342 ; Anderson v. Wallis, 2 Maulé & Sel. 240.) 3d, The boat was repaired, and re-engaged in business, and for aught that appears might have performed the voyage ; but her owners made no effort to do so. They had no intention of resuming the voyage at all. Its abandonment was their own voluntary act, without any necessity caused by any peril insured against, and by that act they lost all recourse upon the defendants. (Salters v. Ocean Ins. Co. 14 Johns. 138 ; Jordan v. Warren Ins. Co. 1 Sto. 342.) 4th, In order to entitle plaintiffs to recover there must have been a destruction of the voyage, either by the actual destruction of the whole cargo, so that it could not be delivered in specie, or by at least such an injury to the boat as would authorize her abandonment to the underwriters — that is, a technical total loss. There was no absolute total loss within the terms of the policy. (Ogden v. General Ins. Co. 2 Duer, 204 ; Hugg v. Augusta Ins. Co. 7 Howard, 595.) 5th, The plaintiffs voluntarily gave up the cargo to the shippers and allowed it to be sold without demanding any part of the freight, although they were entitled to full freight on all they gave up. This was their own voluntary act, without any legal necessity. By it they put an end to the voyage. By thus relinquishing freight which they might have received they lost all claim on the defendant. The defendant’s contract was to indemnify them against “ absolute total loss only,” and the loss could not be said to have been of that character when they were entitled to freight and voluntarily waived an exaction of it. (Herber v. Hallett, 3 Johns. Cas. 93; G-riswold v. N. Y. Ins. Co. 3 Johns. Cas. 321; Jordan v. Warren Ins. Co. 1 Story, 342.)