L. Lewitt & Co. v. Jewelers' Safety Fund Soc.

• Decision Date: 20 November 1928
• Citation: 249 N.Y. 217,164 N.E. 29
• Parties: L. LEWITT & CO., Inc., v. JEWELERS' SAFETY FUND SOC.
• Court: New York Court of Appeals Court of Appeals

249 N.Y. 217

164 N.E. 29

L. LEWITT & CO., Inc.,

v.JEWELERS' SAFETY FUND SOC.

Court of Appeals of New York.

Nov. 20, 1928.

Action by L. Lewitt & Company, Incorporated, against the Jewelers' Safety Fund Society. From a judgment of the Appellate Division (221 App. Div. 727, 224 N. Y. S. 549) reversing on the law and facts a judgment of the Special Term for plaintiff and dismissing the complaint, plaintiff appeals.

Reversed, and judgment of the Special Term affirmed.

Appeal from Supreme Court, Appellate Division, First department.

Donald Marks and W. N. Seligsberg, both of New York City, for appellant.

Lemuel Skidmore and Clarence C. Fowler, both of New York City, for respondent.

KELLOGG, J.

The plaintiff, a corporation engaged in the wholesale jewelry business, employed agents to exhibit and sell its jewelry to the retail trade. On May 8, 1925, the defendant, a corporation engaged in writing burglary insurance, issued to the plaintiff a policy, expiring May 1, 1926, insuring the plaintiff in the sum of $50,000 against loss through theft of any jewelry belonging to it, while the same was without the stores of the plaintiff, in the custody of its salesmen Jack Lewitt and William G. Grimes. On May 10, 1925, a trunk of jewelry belonging to the plaintiff, in the custody of a salesman of the plaintiff named Ernest E. Strauss, was stolen. The plaintiff thereupon brought this action for a reformation of the policy and for the recovery of its damages sustained through the theft. It asserted that prior to the issuance of the policy an agreement had been entered into between the parties whereby the defendant agreed to insure its merchandise while in the custody of its salesmen Ernest E. Strauss, Jack Lewitt, and William G. Grimes; that through mistake or inadvertence the policy was so drawn that the name of Ernest E. Strauss was omitted. The trial court determined that the plaintiff was entitled to reformation as demanded, and directed judgment for the plaintiff for the damages sustained. The Appellate Division reversed the judgment entered upon the direction, disapproved the findings made by the trial court, made new findings, and directed judgment for the defendant dismissing the complaint. 221 App. Div. 727, 224 N. Y. S. 549.

The plaintiff had for many years maintained with the defendant policies of insurance against theft. On April 10, 1925, it was the holder of a policy, issued by the defendant, insuring it in the sum of $50,000, until May 1, 1925, against any loss of its jewelry by theft while such jewelry was in the possession of its salesmen Lewitt and Grimes. On or about the date named, the defendant sent to the plaintiff a document, upon the face of which there appeared a notice of renewal, and upon the back of which there appeared a blank form of application for the issuance of a new policy. The notice read as follows:

‘Your insurance in Class A (Salesmen's Stocks), policy number 45047 for $50,000 expires May 1, 1925, at noon. To renew the above mentioned insurance please fill in the application form on the reverse side and return it promptly to the office of the Secretary-Treasurer so that renewal may be mailed to you before the present policy expires.’

The plaintiff filled out the blank and returned it to the defendant on April 13, 1925. The form, as filled out, expressed an application for a policy insuring the plaintiff, from May 1, 1925, to May 1, 1926, against the loss by theft of its jewelry while the same was in the custody of Lewitt and Grimes. The application, in expressing the amount of insurance which the plaintiff desired, employed the following words: ‘Total amount of insurance, $50,000.00. (Renewed.)’ On April 17, 1925, the defendant wrote the plaintiff as follows:

‘Your applications for renewed insurance covering merchandise in the custody of: 2 salesmen or agents, amounting to $50,000.00, registered mail and express in packages amounting to $2,000.00, have been received and accepted and the policies will be issued to date from May 1st, 1925. Also your remittance of $_____, accompanying your application, will be placed to your credit and a receipted bill for the amount sent with the policies.’

Meanwhile, on April 15, 1925, the plaintiff had written the defendant requesting that a rider be issued, to amend its policy, so that coverage of its merchandise would be provided for while such merchandise, to the extent of $25,000, was in the custody of William G. Grimes; to the extent of $15,000, in the custody of Ernest E. Strauss; and to the extent of $10,000, in the custody of Jack Lewitt. The plaintiff was entitled, as a matter of right, to have its policy altered, whenever it saw fit, to provide for coverage of goods while in the custody of other or additional salesmen than those named in the policy, provided the sum total of insurance was not increased. Complying with the plaintiff's request, the defendant, on April 20, 1925, issued a rider to be attached to plaintiff's policy, providing for the coverage of plaintiff's merchandise in the custody of Grimes, Strauss, and Lewitt. The old policy having expired on May 1, 1925, the defendant, on May 8, 1925, sent to the plaintiff the policy sought herein to be reformed, wherein it insured merchandise of the plaintiff while in the custody of William G. Grimes and Jack Lewitt. The policy omitted the name of Ernest E. Strauss. A clerk of the plaintiff received the new policy through the mail, and, without making an examination to learn its terms, placed it in a safe belonging to the plaintiff. Two days later, as already stated, certain jewelry, in the custody of the plaintiff's salesman Ernest E. Strauss, was stolen from the plaintiff, and for the damage sustained by the plaintiff, through such theft, this action was then brought.

‘The province of reformation is to make a writing express the bargain which the parties desired to put in writing.’ Williston on Contracts, § 1549. ‘There must have been a meeting of the minds of the contracting parties concerning the agreement, or agreements, which the court is asked to declare existent.’ Collin, J., in Metzger v. AEtna Ins. Co., 227 N. Y. 411, at page 417, 125 N. E. 814, 816. An agreement for the making and delivery of a policy of insurance, even though resting in spoken...