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Opinion of the court.

mistake must be mutual and common to both parties to the instrument. It must appear that both have done what neither intended.* A mistake on one side may be a ground for rescinding, but not for reforming, a contract. Where the minds of the parties have not met there is no contract, and hence none to be rectified.t

This jurisdiction is applied, where necessary and proper, to the reformation of contracts of insurance.§

Here the application was to insure on a charter" from Liverpool to Cuba, and load for Europe, via Falmouth," &c. This was indefinite as to Cuba, and may have been regarded by the company as ambiguous. The answer was, as "requested, we have entered $5000 on charter to port in Cuba, and thence to port of advice and discharge in Europe." This answer shows clearly two things: (1.) How the company understood the proposition. (2.) That they agreed to insure according to that understanding, and not otherwise.

There was no mistake nor misapprehension on their part. The circumstances show there could be none.

The correspondence between the parties constituted a preliminary agreement. The answer to Hearne's proposal was plain and explicit. It admitted but of one construction. He was bound carefully to read it, and it is to be presumed he did so. In that event there was as little room for misapprehension on his part as on the part of the company. Such a result was hardly possible. There is nothing in the evidence which tends to show that any occurred. The inference of full and correct knowledge is inevitable. It is

Gex & Jones, 255; Sells v. Sells, 1 Drewry & Smales, 42; Loyd v. Cocker, 19 Beavan, 144.

* Rooke v. Lord Kensington, 2 Kay & Johnson, 753; Eaton v. Bennett, 34 Beavan, 196.

Mortimer v. Shortall, 2 Drury & Warren, 372; Sells v. Sells, supra. Bentley v. McKay, 31 L. J. Chancery, 709; Baldwin et al. v. Mildeberger, 2 Hall, 176; Coles v. Bowne, 10 Paige, 534; Calverley v. Williams, 1 Vesey, Jr., 211.

Harris v. Col. Co. Ins. Co., 18 Ohio, 116; Fireman's Insurance Co. v. Powell, 13 B. Monroe. 311; National Fire Insurance Co. v. Crane, 16 Maryland, 260.

Opinion of the court.

as satisfactory to the judicial mind as direct evidence to the same effect would be.

So far, the complainant's case is as weak in equity as it was at law.

But it is said there was a usage that vessels going to Cuba might visit at least two ports-one for discharge and the other for reloading. It is insisted that this usage authorized the voyage to Manzanillo; that the voyage was not a deviation; that it in no wise affected the liability of the company in equity; and that hence, the contract of the parties in this particular should be reformed accordingly.

It is not necessary that the usage relied upon in cases like this should have been communicated or known to the assurers. Lord Mansfield said: "Every underwriter is presumed to be acquainted with the practice of the trade he insures, and if he does not know it, he ought to inform himself."*

Usage is admissible to explain an ambiguity, but it is never received to contradict what is plain in a written contract. If the words employed have an established legal meaning, parol evidence that the parties intended to use them in a different sense will be rejected, unless if interpreted according to their legal acceptation, they would be insensible with reference to the context or the extrinsic facts. If no such consequence is involved, proof of usage is wholly inadmissible to contradict or in any wise to vary their effect.§ In no case can it be received where it is inconsistent with, or repugnant to, the contract. Otherwise it would not explain, but contradict and change the contract which the parties have made-substituting for it another

* Noble v. Kennoway, 2 Douglas, 513; see also 1 Duer on Insurance, 266, and the cases there cited.

Blackett v. Royal Exchange Assurance Co., 2 Crompton & Jervis, 250; Crofts v. Marshall, 7 Carrington & Payne, 607; Phillipps v. Briard, 1 Hurlstone & Norman, 21.

Wigram on Wills, 11, 12.

Yates v. Pym, 6 Taunton, 446; Blackett v. Royal Exchange Assurance Co., supra.

Opinion of the court.

and different one, which they did not make.* To establish such inconsistency it is not necessary that it should be excluded in express terms. It is sufficient if it appear that the parties intended to be governed by what is written and not by anything else.†

The principle of the admission of such testimony is that the court may be placed, in regard to the surrounding cir cumstances, as nearly as possible in the situation of the par ties-the question being, what did they mean by the language they employed? What is implied is as effectual as what is expressed.§ The expression and the implication in this case are equally clear. It is expressed that the vessel should proceed to a port in Cuba, and thence to Europe. It is implied that she should visit no other port in Cuba. Expressum facit tacitum cessare. Under these circumstances, usage can have no application, and proof of its existence is inadmissible. But the usage relied upon is not sustained by the evidence.

It appears that a large proportion of the vessels, perhaps four-fifths, which go laden with coal to Cuba, take on their return cargo elsewhere on the island than at the port of discharge. A few use the same port for both purposes. But the proof is also that the contract in all such cases is expressed according to the intent. There is no proof that where the policy is upon a voyage to one port and back, the vessel may proceed to another port before her return, and that by usage or otherwise, the latter voyage as well as the former shall be deemed to be within the policy.

Viewing the case in this aspect, we find nothing that would warrant the interposition of a court of equity.

We are asked, if we decline to reform the contract, to decree the return of the premium. This we cannot do.

*Holding v. Pigott, 7 Bingham, 465; Clarke v. Roystone, 13 Meeson & Welsby, 752; Trueman v. Loder, 11 Adolphus & Ellis, 589; Muncey v. Dennis, 1 Hurlstone & Norman, 216.

Hutton v. Warren, 1 Meeson & Welsby, 477; Clarke v. Roystone, supra. 1 Greenleaf on Evidence, 295a.

? United States v. Babbit, 1 Black ̧ 61.

Statement of the case.

We regard the case as one of mere deviation. It is essentially of that character. In that class of cases, the law annula the contract as to the future, and forfeits the premium to the underwriter. Here equity must follow the law. We cannot apply a different rule.

DECREE AFfirmed..

EQUITABLE INSURANCE COMPANY V. HEARNE.

Where a party proposed to insurers to insure his vessel on a "voyage from Liverpool to Cuba and to Europe via Falmouth," at a rate named, and the company offered to insure at a somewhat higher rate, saying, "It is worth something, you know, to cover the risk at the port of loading in Cuba," held that it was implied that "the port of loading" might be different from the port of discharge, and where the assured accepted this offer, and told the insurer to insure "at and from Liverpool to Cuba and to Europe via a market port,"&c., held further, that a policy which insured to port of discharge in Cuba, and to Europe via a market port," &c., did not conform to the contract, and was to be reformed so as to do so.

APPEAL from the Circuit Court for the District of Massachusetts.

The controversy in this case grew out of a contract of insurance upon the same charter-party as in the preceding case, though here the insurance was by a different company from the insurance there. The present case was thus:

On the 2d of May, 1866, Hearne addressed a letter to the Equitable Insurance Company as follows:

"Insure $4000 on the charter-party of the bark Maria Henry, valued at $16,000, if you will not charge me more than 3 per cent.; voyage from Liverpool to Cuba, and to Europe via Falmouth, for orders where to discharge. She will take her registered tonnage of coal."

On the 4th of the same month the company replied:

"We cannot write the charter of the bark Maria Henry at your rate, viz., 3 per cent, including coals, from Liverpool to

Opinion of the court.

Cuba. Our rate will be 4 per cent. for the voyage, to include coals."

On the 7th of the month Hearne answered, arguing against the rate proposed, and offered "3 per cent., or 4 per cent., 1 per cent. to be returned if no loss."

On the day following the company responded:

"We will write upon the charter of the bark Maria Henry as proposed by you-Europe to Cuba and back to Europe-at 34 per cent. net. It is worth something, you know, to cover the risk at the port of loading in Cuba."

On the next day Hearne wrote:

"I accept your proposition in reference to the insurance of the bark Maria Henry. Please insure $4000, at 31 per cont., on the charter valued at $16,000, at and from Liverpool to Cuba, and to Europe via a market port, for orders where to discharge."

The contract, as expressed in the policy, was for

"Four thousand dollars on charter of bark Maria Henry, at and from Liverpool to port of discharge in Cuba, and at and thence to port of advice and discharge in Europe."

The facts of the case were the same in all respects, down to the close of the litigation at law between the parties, inclusive, as those in the case immediately preceding, where the controversy was with the other company. That case 18 referred to for the particulars. Hearne having been defeated in his action at law, filed this bill for the reformation of the contract, as stated in the policy. The Circuit Court decreed in his favor. The company brought the case here for review.

Mr. J. C. Dodge, for the appellant; Mr. Walter Curtis, contra.

Mr. Justice SWAYNE, having stated the case, delivered the opinion of the court.

It is not denied' that the correspondence between the parties constituted a preliminary agreement. Such clearly was

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