Newport Mining Co. v. Firemen's Insurance Co. of Newark

183 N.W. 161, 174 Wis. 401, 1921 Wisc. LEXIS 154

• Court: Wisconsin Supreme Court
• Decided: May 31, 1921
• Status: Published

Opinion

Vinje, J.

It is obvious that the policy as written covered all lumber and building material upon the premises described whether piled in the open or under cover or in buildings. The defendant was twice permitted to amend its answer, but it never claimed that through fraud, mistake, or inadvertence the policy was not written as intended. It did not ask for a reformation of the contract, but alleged that the intention, expressed in the written policy, was that only lumber in the open was covered by it. This constituted but a legal defense, the validity of which must be tested by the language of the contract entered into. It did not call for equitable relief by way of reformation. Without reformation defendant could not, in an action at law, avail itself of the affirmative defense of mutual mistake in the execution of the contract. Casgrain v. Milwaukee Co. 81 Wis. 113, 51 N. W. 88; Elofrson v. Lindsay, 90 Wis. 203, 63 N. W. 89; Miller v. Metz, 103 Wis. 220, 79 N. W. 213; Schmidt v. Schmidt’s Estate, 123 Wis. 295, 101 N. W. 678; Garage E. M. Co. v. Danielson, 156 Wis. 90, 144 N. W. 284; Jilek v. Zahl, 162 Wis. 157, 155 N. W. 909.

Without an allegation of fraud, mutual mistake, or a prayer for reformation of the contract, it was the duty of the court to construe the contract as written. As before stated, the written policy clearly covered lumber and building material contained in partly completed houses.

By the Court. — Judgment affirmed.