AMERICAN MERCHANT MARINE INS. CO. OF NEW YORK v. TREMAINE et al., 269 F. 376

GILBERT, Circuit Judge (after stating the facts as above). We think that the statute has no relation to the subject-matter of the present suit. This is not a case of the construction of an insurance contract. The appellant is not here attempting to assert rights under the contract. It is here seeking to reform the written expression of the contract as found in the policy, and have it set forth the true agreement upon ivhich the minds of the contracting parties had met, and had expressed in writing, and which by accident and mistake had not been included in the policy.

The effort is to let into the' contract something entirely distinct from the sense and construction thereof. The statute was clearly never intended to stand in the way of the reformation of insurance policies, or to curtail a power which is everywhere conceded to courts of equity. Many states have adopted similar statutes, the object whereof is to require that the whole agreement between the insurer and insured shall, be expressed in the policy. But in so legislating there is no denial of power to reform contracts of insurance.

To provide that, if a copy of the application is not delivered to the assured, it shall not become a part of the contract, is not to say that a court of equity may never correct a mutual mistake after the policy is delivered. The statute but expresses the general rule, which obtains in the absence of statute, that a policy of insurance, issued and accepted by the insured, is in law the final contract between the parties, and supersedes all preliminary agreements in'respect to the insurance, in the absence of fraud or mistake.

The court helow relied upon Joyce on Insurance, § 190, which declares that such statutes must be complied with; otherwise the application and all testimony relating thereto will be excluded, so that an application which is not made according to the policy or shown by it in any way cannot be considered. The text-writer was there referring •to cases in which liability under contracts of insurance is either asserted or assailed in actions in court, and the decisions to which he refers are all in cases of that character. The same is true of the cases cited by the appellee herein.

It is contended that the ruling of the court below is sustainable on grounds other than that on which it was based. One of those grounds is said to be' the appellant’s laches. The contract was made in October, and the suit was brought about five months later. It does not appear from anything alleged in the bill that there was laches, and laches was not made a ground of the motion to dismiss.

It is true that the bill fails to state the time when the appellant discovered the mistake; but, there having been no suggestion of laches in the court below, this court would not be warranted in affirming the judgment for such a defect in pleading, which, if it had been pointed out in the court helow, might have been cured by amendment. It is contended, also, that the bill fails to show whether the words omitted from the policy were intended to be a warranty or a mere representation, or that they were material to the risk.

The words which were omitted do not in themselves indicate that they were not what they were alleged to be, “a material express warranty, materially and substantially affecting the rights and obligations” of the appellant. It is obvious that a warranty as to the date of sailing of a scowload of lumber on a voyage in Alaskan waters may be very material to the risk. 26 Cyc. 639. In McLanahan v. Universal Insurance Co., 1 Pet. 170, 188 (7 L. Ed. 98) Mr.

Justice Story said: “That the time of sailing is often very material to the risk cannot be denied.” It is said that the bill was properly dismissed, because of the appellant’s failure to bring more than one of the three defendants into court.. The defendant who resided in the district was served with process. His copartners, being nonresident aliens, had not been served. The resident partner brought the case on for hearing on his motion to dismiss, and he cannot complain that his codefendants had not then been served.

The only question before this court is whether it was error to dismiss the bill, and that question is in no way affected by the fact that but one of the defendants was hefore the court. The decree is reversed, and the cause remanded to the court below for further proceedings.