The Liverpool and London and Globe Ins. Co. vs. Wyld and Darling.

warranty, and made part hereof, S. T., no. 272, six "thousand dollars.

"N.B.-There is an opening in the east end gable of "above, through which communication is had with "the adjoining house, which is occupied by one Onyon "as a coal oil store. Not more than two barrels of re"fined coal oil permitted in said store, but 10 barrels of "the same are allowed to be kept in the yard."

The policy bore date the 9th August, 1871.

A fire took place on the 11th March, 1872, originating in the coal oil store occupied by Onyon, occasioning a loss to the Plaintiffs' stock in trade of several thousand dollars, the goods damaged and destroyed being partly in the store first occupied by the Plaintiffs and partly in the two added flats. The Defendants refused to pay for the loss sustained on goods in the latter portion.

The Plaintiffs then brought an action in the Court of Queen's Bench on the policy above referred to, but failed on the express ground that the description therein did not extend to or cover goods which were in the adjoining flats, which had been added when the extra premium was paid, and that the Plaintiffs suing upon the policy were bound by the description contained in it (1).

Thereupon the Plaintiffs filed the Bill in this case. The prayer of the Bill was that the policy so issued and dated the 9th of August, 1871, might be amended by inserting therein appropriate words, shewing that it was intended to and did cover the goods in the two upper flats of no. 273, and that the defendants might be restrained from pleading at law that the policy covered only the goods contained in no. 272, and that

(1) 33 U. C. Q. B., 284.

The Liverpool and London and Globe Ins. Co. vs. Wyld and Darling.

they might be ordered to strike out the pleas raising such defence.

The cause was carried down for hearing at the sittings of the Court at Hamilton in the spring of 1874, and Blake, V. C., declared the Plaintiffs were entitled to a decree against the Defendants, with costs (1).

The cause was then re-heard before the full Court during the December sitting, and the decree was affirmed with costs (2).

From that decision the Defendants appealed to the Court of Appeal for Ontario, and that Court dismissed the appeal with costs (3).

The Defendants thereupon carried the case to the Supreme Court.

JANUARY, 23rd, 24th AND 25th, 1877.

Mr. James Bethune, Q. C., and Mr. Alexander Bruce, for the Appellants:

The Court of Queen's Bench have properly held by their judgment in the suit between these parties (reported 33 U. C. Q. B. 284), that only the goods in the westerly building, described as S. T. 272, were insured under the terms of the policy issued by the Appellants ; and the Respondents, by coming into a Court of Equity seeking to have the terms of that policy altered, admit that the Court of Queen's Bench were correct in so holding. The Respondents cannot complain of the judgment in the Queen's Bench, for they never appealed from it.

There is thus an instrument, solemnly executed by the Appellants as their contract with the Respondents, delivered to the Respondents in the month of September,

(1) 21 Grant, 458; (2) 23 Grant, 442; (3) 23 Grant, 442.

The Liverpool and London and Globe Ins. Co. vs. Wyld and Darling.

1871, and so accepted by them and retained without question until after a fire takes place in the month of March, 1872. The Respondents do not even then question that this policy contains their contract with the Appellants; but, on the contrary, relying on it as evidencing their contract, they bring an action upon it," and it is not until they find that the construction of the policy by the Court of Queen's Bench is contrary to their contention, that they come forward and say that the policy does not truly state their contract:

After such conduct on the part of the Respondents, it should require a case and evidence of the most conclusive character to warrant a Court in interfering, and the Appellants contend that the Respondents have failed to make out such a case, and that their evidence falls short of what is necessary to entitle them to the relief they seek for.

The insurance effected by the interim receipt was superseded by the issuing of the policy.

The Respondents are not seeking to enforce the contract of insurance as expressed by the policy granted to and accepted by them; but, on the contrary, are seeking to vary the same, and the onus is on them to establish this right by the most clear and incontestible evidence.

Now, it is clear, upon the evidence, that it was not within the scope of Hooper's authority for him to enter into an absolute binding contract of insurance with the Respondents, but his powers were limited both as to extent and duration. He could only grant an insurance for a limited period of time, by issuing an interim receipt, showing on its face that it was to be superseded by a policy, and that the issuing of such policy was a matter which had to be determined by the approval of

The Liverpool and London and Globe Ins. Co. vs. Wyld and Darling. the Board of Directors at Montreal. When the Board at Montreal acted, by issuing a policy, all that Hooper had done or could do was superseded:-Davis v. Scottish Provincial Insurance Company (1).

The increased rate of 62 cents per $100 paid by Respondents, was for the increased risk in consequence of the opening into the building adjoining on the east side.

The Company at their office in Montreal had certainly no notice of any desire or intention on the part of the Respondents to have the portion of their goods in the easterly building S. T. 273 covered by Appellants' policy, and it is equally clear that the Appellants had no intention to insure such goods. This is clear from the language used in framing the policy, which is such as to convey an intimation to the Respondents that only the goods in S. T. 272 are intended to be insured by the Appellants, and is borne out by Mr. Smith's evidence; and the policy has a notice, prominently endorsed thereon, particularly requesting the insured to read his policy and to return the same immediately if any alteration was necessary. Linford v. Provincial Horse and Cattle Insurance Company (2); Graves v. Boston Marine Fire Insurance Company (3).

Solins v. Rutjer's Fire Insurance Company (4); Ryan v. World Mutual Life Insurance Company (5).

The most that can be said is, that the evidence does not establish more than this, that the terms of the policy are not in accordance with the wishes and intentions of the Respondents, but this is not sufficient to vary or alter a written document. The mistake must

(1) 16 U. C., C. P., 185; (2) 10 Jur., N. S., 1066; (3) 2 Cranch, Supreme Court, 225; (4) 8 Bosworth's N. Y. R. 578; (5) 4 Bigelow, 627.

The Liverpool and London and Globe Ins. Co. vs. Wyld and Darling.

be mutual, in order to correct a written instrument; or, to put it in another way, there was no concensus to any thing different from what was contained in the policy:

Fowler v. Scottish Equitable Insurance Company (1); Davega vs. Crescent Mut. Ins. Co. of New Orleans (2).

The evidence to entitle them to a change in the policy must be very strong, for they must not only establish that the policy does not contain the contract intended, but must go further and make out that the Appellants entered into a contract different from that contained in the policy, and in the terms contended for by the respondents And, as the happening of the fire has altered the position of the parties, so that they cannot be placed as they should be according to the Respondents contention there is the stronger reason for not interfering with the contract entered into by the Appellants.

Cox v. Etna Insurance Company (3); Powell v. Smith (4); Bleakely v. Niagara District Mutual Fire Insurance Company (5); Lyman v. United States Insurance Company (6); Andrews v. Essex Fire and Marine Insurance Company (7).

Moreover, by the terms of the interim receipt, the insurance so effected was partly in the nature of an application for insurance, and was only to be binding upon the Appellants until they had an opportunity of accepting the same by the issue of a policy on the terms of such application, or of declining it. The Respondents were bound to the exercise of reasonable care and caution in ascertaining that the policy was issued in accordance with such application and their intention-and a policy having been issued by the Appellants in

(1) 4 Jur., N. S., 1169; (2) 7 Louisiana, 228; (3) 29 Indiana 72; (4) L. R. 14 Eq., 90; (5) 16 Grant, 204; (6) 2 Johnson, C. C. 632; (7) 3 Mason, 6.