Atlas Assur. Co., Limited, of London, England, v. Byrne, 3 Div. 230

• Decision Date: 20 January 1938
• Docket Number: 3 Div. 230
• Parties: ATLAS ASSUR. CO., LIMITED, OF LONDON, ENGLAND, v. BYRNE.
• Court: Alabama Supreme Court

178 So. 451

235 Ala. 281

ATLAS ASSUR. CO., LIMITED, OF LONDON, ENGLAND, v. BYRNE.

3 Div. 230

Supreme Court of Alabama

January 20, 1938

Appeal from Circuit Court, Escambia County; F.W. Hare, Judge.

Bill in equity by Arabelle S. Byrne against the Atlas Assurance Company, Limited, of London, England, and others, to reform a fire policy issued by the named defendant and to vacate an appraisement of property covered by policy which had been destroyed. From a decree overruling a demurrer to the bill the named respondent appeals.

Reversed and remanded.

Coleman Spain, Stewart & Davies, of Birmingham, for appellant.

McMillan & Caffey, of Brewton, for appellee.

BROWN Justice.

This appeal is by the defendant, Atlas Assurance Company, Limited of London, England, from an interlocutory decree overruling said defendant's demurrers to the bill.

The bill presents the complainant's case in two aspects First, to reform a policy contract issued by said defendant, to the complainant and G.S. Byrne, covering a frame dwelling house situated on the southeast quarter of southwest quarter of section 28, township 1, north of range 6 East, in Escambia county, against loss by fire, by striking from the contract the name of said G.S. Byrne, leaving the complainant as the sole person insured; second, to vacate and annul an appraisement of the value of the property destroyed.

The demurrers question the sufficiency of the bill in both of its aspects.

It is well settled that courts of equity will not, in the exercise of jurisdiction to reform a contract, declare or establish a contract into which the parties did not enter. American-Traders' National Bank et al. v. Henderson, 222 Ala. 426, 133 So. 36; Reeves v. Thompson, 225 Ala. 204, 142 So. 663; Henderson v. First National Bank of Birmingham, 229 Ala. 658, 159 So. 212.

Nor will they reform contracts for a mere mistake of law. However, when a writing through mutual mistake of the parties, or mistake of one of the parties, and fraud or deception on the part of the other, or mistake of the scrivener who drew the contract for the parties, contains substantially more or less than the parties intended, or the intention of the parties is not expressed "due to inapt language," it will be reformed to express the true intention of the parties. West End Savings Bank v. Goodwin et al., 223 Ala. 185, 135 So. 161; Kinney et al. v. Kinney, 230 Ala. 558, 161 So. 798; Code 1923, § 6825.

And the rules of good pleading require that the bill state with precision the facts constituting the mistake, and showing that the mistake was not wholly due to the gross negligence of the complaining party. Pearson v. Dancer et al., 144 Ala. 427, 39 So. 474; Burch et ux. v. Driver, 205 Ala. 659, 88 So. 902.

The facts alleged to sustain the first aspect of the bill, in short, are that the complainant was the sole owner of the property; that her deed thereto was of record; and that her ownership was well known, and, "through a mistake of the agent of the aforesaid defendant, Atlas Assurance Company, Ltd., said policy of fire insurance was made out jointly to your Oratrix and to the defendant, G.S. Byrne, with a loss payable clause payable to the defendant, The Federal Land Bank of New Orleans, as its interest might appear."

It does not appear...