Ross v. New England Mut. Ins. Co.

• Decision Date: 28 March 1876
• Citation: 120 Mass. 113
• Parties: James G. Ross v. New England Mutual Insurance Company
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

120 Mass. 113

James G. Ross v. New England Mutual Insurance Company

Supreme Court of Massachusetts

March 28, 1876

[Syllabus Material]

Suffolk. Bill in equity, filed March 25, 1874, to reform a policy of marine insurance.

The bill alleged that the plaintiff, being the owner of the ship Oneida, on June 28, 1872, procured from the defendant a policy of insurance on said vessel for one year, in the sum of $ 5000; that the policy contained the clause "prohibited from the river and gulf of St. Lawrence Northumberland Straits, Cape Breton, Pictou and Black Sea between October 1 and May 1;" that in September, 1872, expecting the ship to arrive at Quebec, he sent the policy to his agent in Boston, inclosed in a letter as follows: "Quebec, September 17, 1872. We inclose the policies on the Oneida to have the time extended for entering the St. Lawrence. We expect that she will arrive here early in October, and will be despatched again without delay. So please have the St. Lawrence clause erased."

That the agent exhibited this letter to the president of the defendant company, who agreed with him to make, for two per cent. additional premium, such change in the contract of insurance as would be adequate to protect the ship in entering the river and gulf of St. Lawrence, remaining there and departing thence, for the purpose, in the manner and at the time it appeared and was shown by the letter she was expected to do, provided she did not sail from Quebec later than November 15, and to preserve the validity of the insurance to the end of the term, notwithstanding the passage of the vessel into and out of the gulf and river of St. Lawrence, as above stated.

That no specific language to be indorsed upon the policy was stated or agreed upon between the parties, but the purpose was fully agreed upon, and the president of the company thereupon indorsed upon the policy and signed the following words: "October 1, 1872. Privilege of using the river and gulf of St. Lawrence outward between October 1 and November 15, charging two per cent. additional premium therefor."

That the Oneida arrived at Quebec on or about October 22, and remained there or in the river above the city until November 19 following, on which day she sailed from Quebec, bound for Valparaiso, with a cargo of lumber on board.

That afterwards, on or about December 4, the plaintiff went to Boston, and there informed his agent that the vessel sailed from Quebec on November 19, and directed him to make such arrangements with the insurance company, and to have such alterations made in the policy or the memorandum, as would protect the vessel, and preserve the validity of the policy under the circumstances above stated.

That the agent thereupon, on December 5, went to the office of the insurance company, and informed the president of the company that the vessel sailed from Quebec on November 19, and exhibited to him a newspaper published at Quebec, bearing date November 20, and pointed out to him a statement in the newspaper that the ship sailed from Quebec on November 19, as above, and then and there agreed with him, that for an additional premium of one half per cent., which was then and there paid by the agent, the vessel should be protected and insured under the policy, although she had remained in the river St. Lawrence, as above, and had sailed from Quebec on November 19; and the president thereupon undertook to make such alterations in the policy or memorandum that the vessel should be protected and insured as above.

That no specific form of words to be indorsed or written upon the policy was agreed upon between the parties, but the president was informed that the vessel had sailed on November 19, as above, and the report of her having so sailed was pointed out to him in the newspaper; and it was fully agreed between them that the policy should be made good, notwithstanding the fact that the vessel had remained in the river St. Lawrence until November 19, and had sailed from Quebec on that day; and that she should, for the additional consideration paid as above, be protected and insured under the policy, notwithstanding the facts that she had so remained and sailed.

That the president thereupon caused the memorandum indorsed upon the policy as above stated to be altered in the following particulars: the words and figures "Nov. 15th" were altered so as to read "Nov. 20th;" the figures "2 per cent." were so altered as to read "2 1/2 per cent.;" and the whole memorandum, so altered, read as follows: "October 1, 1872. Privilege of using the river and gulf of St. Lawrence outward between October 1 and November 20, charging 21/2 per cent. additional premium therefor. George C. Lord, president."

That the vessel, having sailed from Quebec as above set forth, encountered very heavy weather, during which her head sails and some other sails were blown away, so that she became in part unmanageable, and was finally wrecked and totally lost at Corach House Cove, Newfoundland, on December 1, 1872; and, on January 22, 1873, due notice and proof of loss were given to the defendant company, and in sixty days thereafter the insurance company became liable to pay to the plaintiff said sum of $ 5000 in gold coin of the United States; but the defendant had refused and neglected to pay the same, or any part thereof.

That by accident, mistake or inadvertence, the memorandum indorsed upon the policy, as above set forth, did not give effect...