HOGAN v. DELAWARE INS. CO., 12 F. Cas. 309

WASHINGTON, Circuit Justice. The question is, whether, by the terms of this policy, controlled, and explained so far, as, by the rules of law and equity they ought to be, by the letters of the plaintiff, and the order for insurance; the defendants were exonerated from the payment of this loss, in consequence of a policy having been effected, at a subsequent period, on the same property in England. Consider how it would stand upon the policy itself.

If an insurance were effected, in any part of the world, England excepted, prior in date to this policy, the assurers were not to be liable, but for so much as was not covered by such prior assurance; and would be bound, in that event, to return the premium, retaining only one half per cent.; but if such prior insurance should be made in England, the same consequence was to follow; but they were in that case to retain one per cent.

If an insurance were effected in England, or elsewhere, subsequent in date to this policy; such insurance was not to affect these defendants, who would neverthéless be bound in case of loss, to pay the sum insured; and in case of safe • arrival, to retain the premium. So far as the priority of date of the two policies, could be important; the subject was fully and clearly provided for, by the printed and written stipulations in the body of the policy.

The introduction of the written stipulation did not dispense with any one of the printed provisions, which constitute the standing form of the ■ policies of this company; neither did they embrace the same subject, intended to be expressed by this. The former is confined to a prior insurance in England; the latter extends to a prior insurance in any part of the world.

By the former, the defendants were to retain one per cent By the latter, only half as much. [A bill in equity was then filed by the insurance company, which stated no new matter,, except that defendant intended to insure according to the order, and called upon him to declare if that was not his intention. This the defendant denied. The bill was dismissed by Mr. Justice Washington for want of equity. Case No. 3,765.] We are then to consider, whether the order for insurance can be resorted to, for the purpose of giving a construction to this policy.

Now, I take the rule to be, that if by mistake, a deed be drawn, plainly different from the agreement of the parties, a court of equity will grant relief, by considering the deed, as if it had conformed to the agreement. If the deed be ambiguously expressed, so that it is difficult to give it a construction; the agreement may be referred to, in order to explain such ambiguity.

But, if the deed be so expressed, that a reasonable construction may be given to it, and when so given, it does not plainly appear to be at variance with the agreement of the parties, the latter is not to be regarded in the construction of the former. Now, in this ease, the policy, upon the face of it, can admit of but one construction, and the ambiguity arises out of the letter of the 12th of May, and the order for insurance, to which we are referred by the defendants, for an explanation of the policy.

Can any person doubt of this, who has attended to the ingenious and learned criticisms of these papers, by the counsel on each side. .> After it has been so clearly proved, that the important word “is,” may be construed past, present, or to come, and that even “shall be,” may be taken in the past or future tense; where is the standard of certainty to which we are referred, or why leave the plain road in which the policy places us, to wander in the perplexed mazes of the letter and order?

If in these we attempt to seek the intention of the parties, the counsel, who have endeavoured to enlighten the court, have demonstrated, that the pursuit must terminate in doubts. On one side, strong arguments are urged, to prove that the parties intended to make void the American policy, in the event of the plaintiff’s having effected his insurance in England, without reference to the time when it was done; and the other has been little less successful, in proving that the American policy was to be preferred, if a prior insurance was not effected in England.

If, upon this subject, I were compelled to give an opinion, which I should be, were the expressions of the order inverted in the policy, I should, I confess, rather incline to adopt the construction of the defendants’ counsel. But since the pol-' icy admits of a satisfactory construction, and it is this paper alone which produces the ambiguity, the former must be considered as the only safe evidence of the intention' of the parties; particularly after the loss has happened. Judgment for plaintiff.