The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1875-07-21

custom which he insists entered into and formed
part OF IT,
On the It'll May, 1866, ne made mis- application by
letter 10 the company Tor insurance. lie sald:-
- he bark Maria Henry is cna tered to go rom
Liverpool 10 cuba and load for Europe, wa raj
mouth for orders where TO discharge Ilease
Il sure 5000 on this charter, valued az Slo,0Oo.
provided you Will not charge over four per cent
ON the 9th CT that month the company, through
Its president, replied
"Your favor OF the 7tn IL at hand. As requested,
we have entered 50 900 on charter or bark Maria
Henri, LIVERPOOL 10 port Ia CUBA ana thence 10
port OF advice and discharge IN Europe, a. four
policy was made on on the same day and de-
scTibed the voyage as iollows:-
"At aud rom Liverpool 10 port IN cuba, aud at
and thence TO port OF advice and discharge in
Europe"
su ed and received without objection. The vessel
was loaded with coai AZ Liverpool and proceeded
ner outward cargo she went thence 10 Man
XanLO, another port IN Cuna, where she took on
boai a cargo OF native woods. On the l7th OF
SEPTEMBER, 1866, she salled thence lot
n4'0p pfders ''p Tp0a the he 10Th mG laaa
month, on her homeward voyage, she
was lost by perils of toe sea- The notice was
given OF the loss, and 1t IS admitted To have oc-
CURED as alleged IN the bill. The company refused
to nay upon the ground that the voyage rom
santiago de Cuba TO Manztnilo was a deviation
from the voyage described in the policy, and
therefore put an end TO tue liability OF the assured
on the I'm OF December, 1868, wo years after the
loss occurred Hearne brought an action at law
against the company. The Court held that ne was
not entitled to recover by reason OF the deviation
before stated lie failed IN the suit on the 16tn
OF Januar', 1871, he flied this bill and prayed there
m TO have me contract reformed, so as TO cover
the elongated voyage from santiago TO Manza-
milo.
rae reformation OF written contracts for fraud
or mistake IS an ordinary head OF equity Jurlsdc-
non. me rules which govern the exercise oil this
power are founded on good sense and are wen
settled. Wnen the agree ment as reduced TO writ
ing omlfs or CONTAINS items or s1pnatlons con-
lrary 10 the common intention oil the parties the
instrument viii be cOrrecteu so as 10 make II con-
form 10 their real intent. The parties viii be
placed as they would have stood If the
mistake had not occurred. ("Kerr on
Frauos ana Mistakes.n PIP. 4l9 and 42O)
rue party alleging The mistake must show ex-
actly IN what 1t consists, and the correction that
SHOULD De MADE. me evidence must be sucn as to
leave no reasonable DOUBT upon the MIND OF the
minds OF me parties have not net there Is
contract and hence none to ne rectllled. Bently
vs. NldelourgeT, 2 Hail. l76; Uoley vs.. Bowen,
10 Paige, 5S4; Caiyely vs.. Williams, Vesey,
Jr., 2lI.
Thls jurisdiction Is applied, where necessary
and proper, to the reformation OF the contracts OF
Insurance. (haIris W. Colunbia County Insur-
ance company, IL Onio X, lie; firemau's lnsur-
anSe Company vs.. Powell l3 b. Monroe, 81; Ma
tional FIRE Insurance Company vs.. Crane, 10 Nd.
260.) Here The application was to insure on
cnarter ''from Liverpool 70 CuDa aud LOAD for
Europe via Fa mouth" &c. TINS was indefinite
as to Cuba, ana may nave been regarded by the
company ambiguous. The answer was LAS re-
quasted, we nave entered $4,000 on cnarter to
port IN Cuoa and thence 10 port o. aoyice and dis
charge In Europe" rms answer shows clearly
Two thlngs-Flrs', how the company understood
the proposition; second, tnat taey agreed 10 in
sure according TO that understanding and not
otherwise.
There was no mistake nor msapprehension on
their part The circumstances show there could
be none. Tue CORRESPONDENCE between the par
Ties constituted a preliminary agreement. the
answer to Hearne's proposal was pam and eX-
pncIt. 1t admitted OF but one construction. lie
Dound carefully TO read 1t, and 1t is 10 be pre-
sumed ne ala so. In that event there was as little
room Tor misap pre- hcnsion on his part as on the
part oil the company. Suc1 q result was hardly
possible. There is nothing III the evidence which
tends 20 snow that any occurred Inc inference
OF fun and C. rect knUWed2e Is inevitable. IL Is
as satisfactory 10 tne judicial mind as direct evil
deuce to the same effect would be.
so lar the c0mpla,nant's case is as weak In
equity as IL is IN law. But 1t is said there was
usage that vessels gong TO CuDa might visit at
least Two ports-one Tor dlscharglng ana the
otner for reloadng 1t Is insisted mat this usage
authorized the voyage To Manzanlllo; that the
voyage was not deviation; that 1t IN no wise
affected the liability OF the company In equity,
and that hence The contract OF the parties IN
tnis particular should be reformed accordingly.
Ii is not necessary that the usage relied upon in
cas- es IKE this should have been communicated
or known TO the assuTers. LORD Mansfield
sald:-"Eyery underwater IS presumed to be
acquainted with the practice OF lne trade he in
form himself" Noble W. Kennedy Doug, 519.
see also Duer on ms. and the cases there cited)
After considering the rule as 10 usage IL is neid
TO nave no application TO TINS case. But IL Is said
the usage relied upon IS not p owed. IL app ars
tna5 large proportion OG the vessels, perhaps
four htns, when 20 laden tn coal TO Cuba take
their return cargo elsewhere on the Island
tnan at the port OF discharge. lew use
the same port Tor both PURPOSES But the
proof also that the contract In all such cases IS
expressed according to the intent. mere Is no
proof that where the policy is upon voyage
to one port and back The vessel may proceed 10
another port before ner return, ana that by usage
or Otherwise tue latter voyage as well as the
former, snail be deemed to be within The policy.
Viewing the case In THIS aspect, we find nothing
tnat would warrant the interp position Of n court
OF equity. We are asked If we decline to reform
the contract to decree the return OF the premium.
This we cannot DO We regard the case as one OF
mere deviation. 1t is essentially OF that charac-
ter. In hat class OF cases the Jaw annus the con-
tract as to the future and tOTtelLs tue premium to
the Underwater. Here equity must follow the
law
the decree OF the Circuit Court is affirmed.