Consequences of this alteration. 30 Vict. c. 23; and the law is now governed by the 7th and 9th sections of that Act. By sect. 7 no contract or agreement for sea insurance shall be valid unless expressed in a policy. And by sect. 9 no policy shall be pleaded or given in evidence in any Court unless duly stamped. As the slip is clearly a contract for marine insurance, and is equally clearly not a policy, it is, by virtue of these enactments, not valid, that is, not enforceable at law or in equity; but it may be given in evidence wherever it is, though not valid, material." Hence it has been held that after the slip was initialed, i.e., the contract between the parties having been made, though not evidenced by a duly stamped policy, any fresh fact coming afterwards to the knowledge of the assured need not be communicated to the underwriter, however material it may be; and that this effect in law is not varied by the mere fact that the slip was initialed for the agent of the assured, subject to confirmation by his principal. In the case of a company in Liverpool whose agent in London initialed a slip as usual, and received from the brokers copy of such slip, which he forwarded to his principals, the company, but no policy was returned nor any notice from the company that they refused the risk, Blackburn, J., assuming such second or copy slip to be a second agreement, held the company to be in the position both of brokers and insurers, and liable by reason of the want of such notice for the loss which had occurred in the meantime. But in this opinion the learned Judge was not sustained, the other members of the Court and the Court of Appeal being of opinion that the two slips in the case were parts of one contract, and that in the absence of a policy the company were not liable.3 1 Cory v. Paton, L. R., 7 Q. B. 304; on appeal, 9 Q. B. 577; Lishman v. Northern Maritime Ins. Co., L. R., 8 C. P. 216; 10 C. P. 179; Ionides v. Pacific Fire and Marine Ins. Co., L. R., 6 Q. B. 674; L. R., 7 Q. B. 517. 2 Cory v. Paton, L. R., 9 Q. B. 577. 3 Fisher v. Liverpool Maritime Ins. Co., L. R., 8 Q. B. 469; L. R., 9 Q. B. 418. States. In the United States, where the restrictions of the revenue In the United law do not interfere, and the great bulk of sea insurance business is carried on by companies, it is very generally the case that a memorandum of the contract, or an agreement to insure, is made out and subscribed before executing the policy. In such case "the usual practice," says Mr. Phillips, is, "to enter the agreement on the books of the insurance company, subscribed by some officer authorized to bind the company. Such a memorandum is binding on the company to make out a policy if the premium is paid in due time."1 Many questions have arisen, and very elaborate decisions taken place in the United States, as to what will amount to the consummation of an agreement to insure between parties in different places, communicating by letter or message.2 and altera The policy is the only legal evidence of the terms of the Corrections contract of marine insurance, and, as such, will be avoided, tions in the according to one of the best known rules of the common law,3 policy. by any material alteration introduced into it, without the At common consent of all parties, after it has once been underwritten. law. Until that time, as it is merely in fieri, and neither a Before subscription. contract nor evidence of one, any alteration whatever may be made with the consent only of the parties immediately concerned. A policy as originally drawn was upon plaintiff's share of goods valued at 5007., but some days after it had been underwritten by the defendant, and before the whole sum was underwritten, it was found that plaintiff's share was larger than was supposed, and therefore the 1 1 Phillips, no. 13. 2 Ibid. nos. 13 et seq., where Mr. Phillips details at length the cases on this subject; see also 1 Duer, 66, 109 et seq. 3 Master v. Miller, 4 T. Rep. 320; 2 H. Bl. 230; 1 Smith's L. C.; After subscription. To correct a mistake. following words, "on his share of the goods say one-fifth, valued at 10007.," were added in the margin, with defendant's consent and initials; Lord Ellenborough was of opinion that the alteration, though material, did not vitiate the policy, as it was all in fieri, and constituted but one agreement.1 If it clearly appear that there has been a mistake committed to the prejudice of the defendant in drawing up the policy, and that the terms employed in it do not express the true intention and understanding both of the assured and underwriters at the time they entered into the contract, this is a good ground of defence to an action on the instrument, or in case complete justice cannot in that way be done, then it may be a sufficient reason for reforming the instrument.3 Accordingly, where the risk was described in the early part of a policy as a voyage at and from Fort St. George, and the subsequent words were "beginning the adventure from and immediately following the ship's departure from Fort St. George;" Lord Hardwicke, on proof that the policy had been filled up from a label, signed by the agent of the assured and two of the directors of the company, describing the risk to be "at and from" Fort St. George; and the underwriters not disputing that the label expressed the intention of both parties, held, that it must be considered a policy "at and from.”4 Upon a similar application, where the evidence appeared to be contradictory, Lord Hardwicke dismissed the bill, at the same time stating that whilst the Court had jurisdiction to relieve in respect of a plain mistake in contracts that had 1 Robinson v. Tobin, 1 Stark. 336. 2 See Wake v. Harrop, 30 L. J. (Ex.) 273; 6 H. & N. 768; (in error) 31 L. J. (Ex.) 451. 3 But in the words of Story, J., a court of equity will "be extremely cautious in the exercise of such an authority, and will withhold its aid where the mistake is not made out by the clearest evidence, according to the understanding of both parties, and upon testimony entirely exact and satisfactory;" Andrews v. Essex Fire and Mar. Ins. Co., 3 Mason's Rep. 6; In re Bird's Trusts, 3 Ch. Div. 214. 4 Motteux v. London Ass. Co., 1 Atkyns, 545. been reduced into writing in a form contrary to the intention of the parties, it would only exert such power upon being satisfied by the strongest possible evidence that a mistake had really been made.1 The contract of the underwriters is complete in fact and in Mistake in declaring form when they have signed the policy. A declaration of interest. interest to be afterwards made stands on a different footing. "It is the mere exercise of a power conferred on the assured. It is generally put upon the policy for convenience; but this is not necessary; nor is there any necessity for its being in writing." If, therefore, a broker has committed a blunder in making this declaration, as where he has declared goods by the wrong ship, this blunder may be rectified without the assent of the underwriters.2 The parties themselves may, by consent, introduce any Corrections by consent. alterations into the policy, even after it is underwritten, whether by an erasure, and interlineation, or an addition in a blank space, which may be required by their mutual interests, and sanctioned by their mutual agreement (subject, however, as we shall see, to the provisions of the Stamp Acts); and such alterations, if properly signed, and not infringing the provisions of the Stamp Acts, form as valid a contract between the parties as the original terms of the policy. Policies are required by law to be in writing, and therefore Must be in writing. alterations intended to make policies express the meaning of the parties must also be in writing, either in a separate instrument, or on the face or back of the policy itself; and in either case subscribed by, or as is most usual in practice, signed by the initials of, the underwriters, who are intended to be bound by them. The only ground upon which a 1 Henkle v. Royal Exch. Ass. Co., 1 Ves. Sen. 317. 2 Robinson v. Touray, 3 Camp. 158. 3 Striking a pen across words, and writing others over them, so as to make them illegible, is a cancelling Kaimes . Knightly, Skinner, 54; General rule at common law. What are material alterations. Destination. Subject of insurance. Time of sailing. Another terminus ad quem. written alteration of this kind can be binding upon any of the parties to the original policy, is his assent signified thereto by his signature; in the absence of this, dissentients are not bound by the policy as altered.1 As to alterations, the general rule is, that any material alteration of the policy, by the assured, avoids the policy, except as to those underwriters who have consented to it in writing, by signing their initials to the memorandum in which the alteration is specified, or to the interlineation, erasure, or addition by which it is effected.2 The question, therefore, has generally been, what constitutes a material alteration? To use the language of Judge Duer, does it change the sense, or affect in any degree the substance of the contract? Where a ship was insured from Virginia to Rotterdam, with leave to call at a port in England, and the assured, after the policy was underwritten, by consent of some of the underwriters (indorsed on the policy), altered her destination from Rotterdam to Hull: this was held to avoid the policy, as to all the underwriters, except those who had signed the indorsement.3 So the insertion of a specific subject of insurance in a policy which had been executed in blank ; the alteration of a specified day in the warranty as to time of sailing;5 and the alteration of a policy which had been "from Colmar to Portsmouth" into a policy "from Colmar to Portsmouth, or Weymouth;" were severally held to be policies not binding on those underwriters who had not subscribed the alteration, and this, too, in the latter case, notwithstanding the 1 Forshaw v. Chabert, 3 Br. & B. 158; 6 Moore, 369; see also 1 Duer, 78-81, notes 142 et seq. 2 Laird v. Robinson, 4 Brown's Parl. Cases, 488; Langhorn v. Cologan, 4 Taunt. 330; Fairlie v. Christie, 7 Taunt. 416; Campbell v. Christie, 2 Stark. 64; Saunderson v. Symonds, 1 Br. & B. 426; Forshaw v. Chabert, 3 Br. & B. 158; 6 Moore, 369. 330. Langhorn v. Cologan, 4 Taunt. 5 Fairlie v. Christie, 7 Taunt. 416; 1 B. Moore, 114; S. C. at N. P., Holt, 331. |