Bartholomew v. Mercantile Marine Insurance

Learned, P. J.: Since the union of' law and equity in one court and under one-form of practice, we think it has become more important than ever to understand and maintain true principles as to the reformation of contracts. That remedy in equity, in its nature, necessarily involved an exception to the general' rule that parol evidence of prior negotiations could not be admitted to vary a written agreement. And the soundness of that nile may be seen from the consideration that, after verbal negotiations, it must be deemed that the parties have come to the final conclusion expressed in the written instrument. The equitable doctrine of reformation was adopted where, by mutual mistake, or by mistake on one side and a fraudulent advantage taken on the other, the instrument was dif- - ferent from that which the parties intended it should be. (Bryce v. Lorillard, 55 N. Y., 240.) And a fundamental rule in respect to this doctrine is that the evidence to show that a mistake had been made must be unquestionable (1 Story Eq., § 157); “ irrefragible,” as said by Lord Thurlow, in Lady Shelburne v. Inchiquin (1 Bro. C. C., 338); so clear and convincing as to leave no room for doubt (Mead v. West. Ins. Co., 64 N. Y., 453); proved as much to the satisfaction of the court as if admitted. (Ford v. Joyce, 78 N. Y., 618.) We need cite no further expression to show how strong the evidence must be to sustain a reformation. In the present case the plaintiff’s evidence utterly'fails to reach that high degree. Iiis case rests solely on his own testimony, and he is an interested witness. He is contradicted on the material point by the testimony of the defendant’s agent, who has no pecuniary interest ; although, doubtless, he sympathizes with the defendant. Furthermore, the plaintiff is contradicted by the evidence which he himself gives, showing that, for fear of creditors, he did not desire to take out a policy in his own name, thinking that it would lead them to discover the truth, viz.: thakthe business whiph he-was conducting under the name of agent was really his own. We might further say that there is plainly no evidence of [266] mutual mistake, because it is not pretended that Stowell dkew the policy differently from what he intended. And .there is no evidence that any fraud was committed, or that Stowell took advantage of the plaintiff, as was the case in Albany City Savings Institution v. Burdick (20 Hun., 104; 87 N. Y., 40.) But'without discussing the point whether the plaintiff might not have had a reformation of the policy, if his proof had been sufficiently convincing, we are of the opihion that he failed to make a case which entitled him to that relief. The judgment should be reversed upon the facts and a new •trial granted, costs to abide the event. Present — Learned, P. J., and Bookes, J.; Landon, J., not acting. Judgment reversed on the facts, new trial granted, costs to abide event.