De Witt C. Van Tuyl et al., Respondents, v. The Westchester Fire Insurance Company, Appellant

De Witt C. Van Tuyl et al., Respondents, v. The Westchester Fire Insurance Company, Appellant. (Argued December 5, 1873; decided December 16, 1873.) However rigid maybe the rule requiring ample, clear and conclusive proof of mistake before the written contracts of parties will be changed upon oral testimony, this court cannot review the decision of the trial court upon such a question rendered upon conflicting testimony. That an action to reform a policy of fire insurance is not brought until after a loss, is not ipso facto a bar; it is a circumstance.to be taken into consideration in weighing the testimony and determining whether a mistake was made. In an action to reform a policy of Are insurance by striking therefrom a printed condition, plaintiff, after proving that application was made for and that defendant agreed to write upon the property, the same as did the U. S. Co., and to follow the form of its policy, offered in evidence a blank form of the policy of the latter company, which contained no such printed condition, this was admitted under objection. Held, no error; that as the policies were to be alike, it was proper to show that there was no such printed condition in the latter; and that this was properly shown by the printed form. This was an action to reform a policy of fire insurance upon stock and materials in a manufacturing establishment, and to recover the amount. One of the printed conditions of the policy declared it null and void in case of the establishment running, in whole or in part, over or extra time, or running at night, without special agreement. Plaintiffs sought to have this struck out, or to have a clause giving permission inserted. Plaintiff's gave evidence to show that they previously insured with defendant, but had the policy canceled because of the condition above mentioned being in the policy; that plaintiffs’ agent informed defendant that the United States Insurance Company of Baltimore was writing on the property, and that their policy did not contain that clause; that defendant thereupon agreed to write as the other companies did, and to follow the form of the United States policy, which plaintiffs were to and did furnish for defendant to copy. Plaintiffs thereupon produced a blank form which the witness testified was a blank policy of the latter company. This was offered in evidence and was objected to upon the ground that the copy shown defendant should be produced, and that a blank form not filled up was not proper evidence. The objection was overruled, and defendant excepted. Plaintiffs also gave evidence tending to show that they did not discover that the permission required was not in the policy until after the fire. The evidence, as to the agreement, was denied by defendant’s agent, who effected the insurance. Held, as above. Wm. H. Pemberton for the appellant. F. jK Hama for the respondents. [MAJORITY — Folger, J.,] Folger, J., reads for affirmance. All concur. Judgment affirmed.