BALDWIN v. LIVERPOOL & LONDON & GLOBE INS. CO., 124 F. 206

WANTY, District Judge, after making the foregoing statement of the case, delivered the opinion of the court. The complainant was in equity only a mortgagee of the vessel which he claims to have insured as owner. Davidson v. Baldwin, 79 Fed. 95, 24 C. C. A. 453. The policy which was issued provided, among other things, that it should be void if the interest of the insured was other than unconditional and sole ownership.

Whether if a policy had issued insuring Baldwin as sole and unconditional owner, without qualifying words, it would have been enforceable, we need not decide, for there was no evidence of any agreement to insure Baldwin as sole owner. But it is urged that a policy should be decreed to be written according to the terms of the application made to the /Etna Insuranee Company. There is nothing in the pleadings to warrant such a decree.

No such issue was tendered by the bill, which states that the complainant, who is only the mortgagee, was the owner of the tug, and as such owner made application for the policy, which by mistake was written in the name of Captain James Reid. The application which was actually made was not set out in the bill, and as it was made to Cook, Calbeck & Co., and not to the defendant, the defendant knew of no such application until the evidence was taken.

If Reid were a party to the suit, and there were sufficient averments in the bill to sustain a decree under the prayer for general relief, directly contrary to the case made out by the bill, the other questions raised might be discussed. But such a decree, if the complainant were entitled to it under the proofs, would be entirely outside of the pleadings on a case not made or contemplated by the bill, and to which the defendant has not been called upon to answer, and, in fact, has not answered. “The recovery must be had upon the case made by the pleadings or not at all.” Grosholz v.

Newman, 21 Wall. 481, 488, 22 L. Ed. 471; Hoffman v. McMorran, 52 Mich. 318, 17 N. W. 928; Jones v. Davenport, 45 N. J. Eq. 77, 17 Atl. 570. No relief can be granted for matters not charged in the bill, and a party can no more succeed upon a case proved, but not alleged, than upon a case alleged, but not proved. Beach, Modern Eq. Prac. §§ 99, 100, 790, and the text-books and numerous authorities cited in the notes. The decree dismissing the bill must be affirmed.