John Hughes, Respondent, v. The Mercantile Mutual Insurance Company, Appellant

John Hughes, Respondent, v. The Mercantile Mutual Insurance Company, Appellant. (Argued November 20, 1873; decided December 9, 1873.) A mistake in the name of a vessel in a policy of marine insurance is no obstacle to a recovery, if in point of fact both parties had in view the same vessel, and the underwriter, when the policy was issued, knew the true name, or intended to insure the particular vessel lost; but when there is a mistake as to the vessel sought to be insured, and the policy is upon another vessel than that for which application was made, no contract exists, as the minds of the parties did not meet; and this is soj although the underwriter was put upon inquiry, and by the exercise of diligence and care could have prevented the mistake; negligence alone will not avoid the difficulty. Appeal from judgment of the General Term of the Court of Common Pleas for the city and county of New York, affirming a judgment in favor of plaintiff, entered on a verdict, and affirming an order denying a motion for a new trial. This action was brought upon a policy of marine insurance. The vessel insured was described in the policy as follows: “The good bark called the Empress, or by whatever other name or names the said vessel is or shall be named or called.” The complaint alleged that the bark intended to be insured was called the St. Mary, and that defendant, in making out the policy, by mistake named her the Empress. The facts appear sufficiently in the opinion. Townsend Boudder for the appellant. Parol evidence is not admissible to vary the policy. (1 Greenleaf’s Ev., § 275; Lamalt v. H. R. F. Ins. Co., 17 N. Y., 199, note; Brown v. Catt. Ins. Co., 18 id., 389; Sarsfield v. Met. Ins. Co., 61 Barb., 482; The Delaware, 14 Wal., 579, and cases cited; N. Y. Ins. Co. v. Thomas, 3 J. Cas., 4; Phoenix Ins. Co. v. Gurnee, 1 Paige, 278.) It is only when the policy is on its face ambiguous that the previous agreement is permitted to control the interpretation. (1 Duer on Ins., 71, 73 ; 1 Parsons on Marine Ins., 108; Birmingham v. Empire Ins. Co., 42 Barb., 457; Jennings v. Chenango Co. M. Ins. Co., 2 Den., 75.) The fact that plaintiff did not read the application does not raise a presumption that it did not truly express the contract. (Hallenbeck v. De Witt, 2 J. R., 404.) Plaintiff was bound to prove the identity of the vessel insured and the vessel lost. (Ionides v. Pacific F. & M. Ins. Co., L. R., 6 Q. B., 674; Transcript Nov. 29,1871.) Robert P. Lee for the respondent. The name of the vessel was not material if it could be identified in any other way. (Emerigon, chap. VI. § 11, Mededith’s ed., 127; 1 Phil, on Ins., § 430; 1 Duer on Ins., 172, 173; Hall v. Mollineaux, 6 East, 382, 386; Mesurier v. Vaughan, id., 382; Clapham v. Cologan, 3 Camp., 382.) Defendant is estopped from avoiding its contract on account of errors into which it led plaintiff. (Flanders on F. Ins., 100, and cases cited; Plumb v. Catt. Ins. Co., 18 N. Y., 392; Rowley v. Em. Ins. Co., 36 N. Y., 550; Wilkinson v. Ins. Co., 13 Wal., 222,232, 233; Benedict v. Ocean Ins. Co., 31 N. Y., 393.) [MAJORITY — ■Andrews, J.] ■Andrews, J. It was incumbent upon the plaintiff, before he could recover for the loss of the bark “ St. Mary,” to show that the contract of insurance related to that vessel. The policy of insurance was upon the bark “ Empress, or by whatever other name or names the vessel is or shall be named or called.” The bark lost was the “ St. Mary,” but the mistake in the name was no obstacle to a recovery, if in point of fact the underwriter, when the policy was issued, knew the true name, or intended to insure the particular vessel which was lost. (1 Arnould on Ins., 30, 170; 1 Duer on Ins., 172; Sea Ins. Co. v. Fowler, 21 Wend., 600 ; Pothier on Sales, art. 3, § 2; Le Mesurier v. Vaughan, 6 East, 382.) When it appeared upon the trial, in connection with the proof of loss, that the name of the vessel was the “ St. Mary,” it was necessary for the plaintiff to establish, by further evidence, the identity of that vessel with the bark “ Empress,” named in the policy. This he attempted to do by proof that he acted in procuring the insurance "as agent for McGrinness, the owner of the “ St. Mary,” and that she was formerly known as the “ Empress,” her name having been changed in October, 1865, before the issuing of the policy. The plaintiff also testified that, at the time of the application for the insurance, he informed Mr. Newcomb, the vice-president of the defendant’s company, of these facts, and that the bark when last heard from, on the twelfth of December, was at Nevassa Island loading with guano. There can be no doubt that the plaintiff intended to procure an insurance on the “ St. Mary,” and that he supposed that the policy when issued related to that vessel. Nor could there be any doubt, if no additional proof had been given, that the underwriter intended that the policy should attach to the “ St. Mary,” and that there was an aggregatío meniium between the parties to the contract. But it also appeared, before the plaintiff rested, that there was a written application for insurance made by the plaintiff, and signed by him and his insurance broker at the interview between the plaintiff and Mr. Newcomb. In this application it was stated that the plaintiff desired insurance to the amount of $5,000 on the bark “Empress,” of 365 tons burthen, built at Sunderland in 1858, rated A l-J. It appeared upon the examination of Thompson, the plaintiff’s broker, that applications for marine insurance are ordinarily filled out by the merchant or broker seeking insurance; that in this case, after the oral application was made and Mr. Newcomb had consented to take the risk, he asked the plaintiff if he should fill out the application for him, and he replied “ yes ; ” that Newcomb then sent a clerk to the office of Taylor & Co., ship surveyors, which was in the same building with that of the defendant, and who were publishers of the Lloyd’s Register, for information as to the “ St. Mary.” The clerk brought a printed book, which the evidence clearly establishes was the Register, issued in June, 1865, and pointed out the entry of a survey of the bark “ Empress,” which- he stated was that of the “ St. Mary,” the name having been changed after the book was published. Newcomb then filled out the application, and the plaintiff signed it without reading it, and the policy was subsequently issued upon this application. The “ Register ” contained a description of two barks, named “ Empress,” both built at Sunderland; one described as built in 1852, of 426 tons, and rated A, 2, and the other as built in 1858, of 365 tons, and rated A, lí¿. The first of these vessels was the “ St. Maiy; ” the other did not belong to McGinness, and he had no interest in her, and is the one described in the application. When the plaintiff rested, the counsel for the defendant moved to dismiss the complaint, on the ground that it appeared that the defendant did not insure and did not intend to insure the “ St. Mary.” It is a clear proposition that an agreement can only be formed by the consent of the parties, and there can be no consent when the parties are in error respecting the object of their agreement. (Pothier on Obligations, vol. 1, art. 3, § 17; 2 BL, 442 ; 2 Kent, 477; 1 Par. on Con., 475; Hazard v. New England Ins. Co., 1 Sum., 218; Hammond v. Allen, 2 Sum., 387; Bruce v. Pearson, 3 J. R., 534; Greene v. Bate man, 2 W. & M., 359.) The mistake in snch a case would relate to the very ground and essence of the transaction. Considering the policy issued by the defendant in connection with the application, and the description of the vessel called the “ Empress,” in the book referred to when the application was drawn, there seems to be no doubt that the vessel which the defendant intended to insure was the “ Empress ” described in the application, and not the vessel of that name owned by McG-inness. There is no claim that the agent of the defendant, knowing the bark the plaintiff had in mind, fraudulently inserted the description applicable to the other. The underwriter would, in such a case, be estopped from alleging the misrepresentation in the application as a defence, or from setting up that there was no mutual assent to the contract made. If or would the jury have been authorized to find that the agent having in mind the St. Mary,” and its true description, by mistake, in transcribing from the Eegister, inserted in the application the description of the other vessel. The plaintiff informed the defendant’s agent, when the application was made, that the vessel upon which he desired insurance had been owned by Pearson & Co., of Hull, and the fact that she had been so owned appeared in the printed description of the “ Empress ” contained in the Eegister. It was also shown that, in October previous, the vessel had been resurveyed and reclassed by a surveyor of Lloyds, and that the record of the survey was in the office of Taylor & Co. at the time of the application for insurance, and that the defendant’s agent was informed that a new survey had been made. It did not appear that in fact the defendant had any knowledge of this survey or any information as to either of the vessels called the “ Empress ” beyond what was communicated by the plaintiff at the time of this application, or was contained in the printed description. The most that can be claimed from this proof is, that the defendant’s agent was put upon inquiry, and might, by the exercise of diligence and care, have avoided the mistake in respect to the vessel sought to he insured. But the negligence of the agent does not avoid the difficulty, that, in fact, the minds of the parties never met upon the subject of the insurance. The plaintiff applied for insurance on one vessel, and the defendant agreed to insure another. If both parties had in view the same vessel, and the error in the application related to some quality of the vessel, or to some extrinsic fact, and the error was that of the agent of the insurer, authorized to fill out the application, and the falsity of the representation wás relied upon as a defence, another question would be presented which has been considered in several cases in this court. (Plumb v. Cattaraugus Ins. Co., 18 N. Y., 392; Rowley v. Empire Ins. Co., 36 N. Y., 550.) The filling out of the application in this case by the agent of the underwriter was not according to the usual practice. The plaintiff "signed it without reading it, and his omission to do so prevented him from discovering the mistake. We are of opinion that the motion to dismiss the complaint should have been granted, upon the ground that no contract of insurance was effected between the parties. The judgment of the General Term should be reversed, and a new trial granted, with costs to abide the event. All concur. Judgment reversed.