DELAWARE INS. CO. v. HOGAN, 7 F. Cas. 403

WASHINGTON, Circuit Justice, delivered the opinion of the court. When this case was decided on the law side of the court, the whole question wás taken into consideration; every thing being viewed as done, which a court of equity could properly have directed to be done. The true question was then, and still is. what was the agreement between these parties? The argument urged upon the former occasion, and again repeated, was, that the order alone constituted the agreement. What then is the use of the policy?

If it be not evidence of the contract finally concluded upon, it must be considered as a superfluous document, unnecessarily executed, and improperly introduced into a cause. The order contains the heads of the agreement for the information of the party, who is afterwards to give it its proper form. The form, which it finally assumes, is that of an instrument, denominated a “policy;” which is signed by the underwriter, and is the evidence of the contract of indemnity, as understood by him and the assured.

It may and certainly often does happen, that the terms of the order are departed from by consent, by fraud, or by mistake. If by consent, no person will contend that the order should control the policy; and if by fraud or mistake, then the order may be resorted to where it materially varies from the policy, because in reality', that would be the only true evidence of the agreement upon the point of variance. I say “materially variant,” as if the risk, stated in the policy,, be “from” such a place, instead of “at and from;” as in the case of Mitteaux v. London Ins. Co.

So if it contain a warranty which is not authorized by the order, and the like; and in such cases, the variance itself between the two instruments, would, without contradictory proof, be evidence of the mistake. But still, the order could only be resorted to so far as it varied from the policy; and. in all other respects, the policy would be considered as the contract. But a previous question must always be, Is there a variance? and to ascertain this, the whole evidence must be considered. The whole must be taken and construed together; the letter of instructions, the order and the policy.

It is from these together, with any other evidence which may be produced, that the real intention of the parties is to be discovered; and whether this intention has, by fraud or mistake, been frustrated by any expressions used in the policy. This brings us to the true point in this cause; does it appear, from the whole evidence, that the’policy misstates the contract intended by the parties?

The letter of instructions and the order afford no evidence that the intention of the parties was mistaken; because they are expressed in such ambiguous terms, it may well be doubted, whether the clause now complained of, refers to a prior, or to a subsequent insurance effected in London. The defendants, in their answer, swear, that the policy states the contract as they intended it, and there is no evidence in the cause to show that it-contradicts the intention of the complainants. Why then should the words of the order be substituted for those of the policy ?

Not because the latter has mistaken the intention of the parties, for the reverse of this appears to be the fact,—not for the purpose of explaining; a doubtful meaning, for it is the order alone which creates a doubt.

Tf further observations be necessary to render this case clearer, let it be noticed, that the addition to the order, and the insertion of the clause in the policy which is now objected to, were made by the party who now asks relief; and that the policy remained with him, without a suggestion being made, that it was repugnant to the real agreement of the parties, until after the catastrophe had occurred, upon which his obligation to indemnify the other party had become complete. All the principles of law and of equity are against him. Bill dismissed with costs.