Boyce v. Hamburg-Bremen Fire Insurance

Opinion by

Henderson, J.,

A conclusive answer to the plaintiffs’ complaint in this case, is that it is'neither proved nor alleged in the bill that the defendant contracted with the complainants to insure the property which it is sought by this proceeding to cover by the policy. Giving to the bill the most favorable interpretation in favor of the ‘ plaintiffs, it alleges that an order was given an agent of the defendant to insure a certain building; that the agent by mistake wrote a policy on another building of the same owner, “ whereas the true intent of the parties applying for the insurance was for an insurance on the premises located on east side of Main street.” It is nowhere averred in the bill that the defendant agreed with the plaintiffs to insure the property on the east side of Main street, or that it was the understanding of the defendant when the policy was issued that the property insured was on the east side of the street. It is doubfh less true that the plaintiffs intended to have that property insured, but there is neither averment nor proof that that was the understanding of the defendant and that the policy of insurance was issued with that intention. The uncontradicted evidence is that the property actually insured, and which the agent of the company examined and intended to insure, was on the west side of Main street. The case is not one therefore for the reformation of the contract. To do that would be to create a new obligation for the defendant, and one which it never agreed nor intended to assume. Perhaps the defendant would have issued a policy on the building on the east side of the street, but it made no examination of that property, and issued no policy thereon. What the condition of that property was, and whether the company would have taken a risk upon it, we are not informed, nor is it material in the determination of this case.

It is a settled rule in equity that where the court is asked to reform the written evidence of a contract, the mistake must be mutual: 1 Beach Eq. Jur. sec. 50; Mead v. Insurance Co., 64 N. Y. 453; Diman v. Providence, etc., R. R. Co., 5 R. 1.130 ; Sawyer v. Hovey, 85 Mass. 331; Cooper v. Farmers’ Mut. Fire Insurance Co., 50 Pa. 299. A court of equity has not power to reform an agreement; it can only correct the written evidence of the agreement to make it correspond to the understanding of the parties. A decree in the present case so reforming the policy of insurance as to make it apply to the property on the east side of the street would no more express the agreement of the parties than does the policy actually issued. It is not enough in such case to show the intention of one of the parties. It must clearly appear that the mistake was mutual, and that the writing should be altered to conform to the actual agreement of the parties.

The decree is affirmed.