Lyman v. United Insurance

2 Johns. Ch. 630, 1817 N.Y. LEXIS 194, 1817 N.Y. Misc. LEXIS 51

Opinion

The Chancellor.

[ * 633 ]

The difficulty in this case arises from the want of the requisite evidence of any agreement of the parties, different from that contained in the policy. The cases which, treat of this head of equity jurisdiction, require the mistake to be made out in the most clear and decided manner, and to the entire satisfaction of the Court. The authorities were reviewed in the decision in the case of Gillespie and wife v, Moon,

† and a reference was made to the successive opinions of Lord Hardwicke, Lord Thurlow, and Lord Eldon, (1 Vesey, 317. 1 Bro, 94. 6 Vesey, 328.) *in favor of the most demonstrative proof, especially against the answer denying the mistake.

[ * 634 ]

In the present case, we have not any parol proof that the United Insurance Company ever did agree to any other contract of insurance than that contained in the policy. The witnesses examined on the part of the plaintiffs, were not present at any conversation or agreement. They give us only general information and beliefand they know nothing of any agreement between the parties, different from that which the policy contains. The only circumstance on which the plaintiffs can place any reliance, to sho.w that the company had agreed to the proposals, in respect to the Portuguese passport and Portuguese character of the vessel, in other words, to the disguise and deception at which the plaintiffs aimed, is the memorandum at the foot of the plaintiffs’ proposals. But it appears to me, that this note is far too vague and uncertain to justify any correction of the policy. It was not subscribed by the company, nor by their authority. It appears to be only heads of conversation and inquiry on mere fugitive points, which were lost and merged in the execution of the formal instrument. It was the duty of the plaintiffs to have resorted to that instrument, as soon as it was drawn, to see whether the parties understood each other. There is no evidence that this memorandum was returned by the company, as the terms agreed to by them. Not a witness alludes to it. The clerk, who was examined, says, that the policy was filled up according to the terms agreed to by the company, and returned by them; and so says, also, the answer of the secretary to the company. And what were these terms ? No one says that the notes at the foot of the proposals were the terms, nor for what purpose they were made. All this is left to conjecture and inference. The notes are not sufficiently full and intelligible to make out any policy, in extenso, from them. It does not appear to which alternative part of the proposals they alluded. *The policy itself, to which we are to look for the terms, according to the answers, and to the testimony of Jones, the clerk, contained special stipulations; as, for instance, against American captures, not mentioned in the proposals, nor alluded to in the notes, and to which no objection was made by the plaintiffs. To alter a clear written contract of the parties, without any parol proof to warrant the new agreement, and when the charge of mistake is denied in the answer, and denied by a witness present; and to do this upon no other foundation than such an imperfect memorandum, obscuris vera involvens, would be destructive to the certainty and safety of written contracts.

There is no case that goes such lengths; no amendment was ever made, without absolute conviction of the truth and precision of the real agreement. Here is no, or, at least, not sufficient, evidence that the defendants ever did agree to any other terms of insurance than those expressed in the policy. The bill must, consequently, be dismissed; and I am willing that it should be without costs, as was done by Lord Hardwiclce, in one of the cases referred to, on the ground that here may have been a misapprehension between the parties in the formation of their contract.

Bill dismissed.

END OF THE CASES.

Ante, p. 585.