Supreme Court of United States.
*490 Mr. Walter Curtis, for the appellant; Mr. H.C. Hutchins, contra.
Mr. Justice SWAYNE, having stated the case, delivered the opinion of the court.
The reformation of written contracts for fraud or mistake is an ordinary head of equity jurisdiction. The rules which govern the exercise of this power are founded in good sense and are well settled. Where the agreement as reduced to writing omits or contains terms or stipulations contrary to the common intention of the parties, the instrument will be corrected so as to make it conform to their real intent. The parties will be placed as they would have stood if the mistake had not occurred.[*]
The party alleging the mistake must show exactly in what it consists, and the correction that should be made. The evidence must be such as to leave no reasonable doubt upon the mind of the court as to either of these points.[] The *491 mistake must be mutual and common to both parties to the instrument. It must appear that both have done what neither intended.[*] A mistake on one side may be a ground for rescinding, but not for reforming, a contract.[] Where the minds of the parties have not met there is no contract, and hence none to be rectified.[]
This jurisdiction is applied, where necessary and proper, to the reformation of contracts of insurance.[§]
Here the application was to insure on a charter "from Liverpool to Cuba, and load for Europe, via Falmouth," &c. This was indefinite as to Cuba, and may have been regarded by the company as ambiguous. The answer was, as "requested, we have entered $5000 on charter to port in Cuba, and thence to port of advice and discharge in Europe." This answer shows clearly two things: (1.) How the company understood the proposition. (2.) That they agreed to insure according to that understanding, and not otherwise.
There was no mistake nor misapprehension on their part. The circumstances show there could be none.
The correspondence between the parties constituted a preliminary agreement. The answer to Hearne's proposal was plain and explicit. It admitted but of one construction. He was bound carefully to read it, and it is to be presumed he did so. In that event there was as little room for misapprehension on his part as on the part of the company. Such a result was hardly possible. There is nothing in the evidence which tends to show that any occurred. The inference of full and correct knowledge is inevitable. It is *492 as satisfactory to the judicial mind as direct evidence to the same effect would be.
So far, the complainant's case is as weak in equity as it was at law.
But it is said there was a usage that vessels going to Cuba might visit at least two ports one for discharge and the other for reloading. It is insisted that this usage authorized the voyage to Manzanillo; that the voyage was not a deviation; that it in no wise affected the liability of the company in equity; and that hence, the contract of the parties in this particular should be reformed accordingly.
It is not necessary that the usage relied upon in cases like this should have been communicated or known to the assures. Lord Mansfield said: "Every underwriter is presumed to be acquainted with the practice of the trade he insures, and if he does not know it, he ought to inform himself."[*]
Usage is admissible to explain an ambiguity, but it is never received to contradict what is plain in a written contract.[] If the words employed have an established legal meaning. parol evidence that the parties intended to use them in a different sense will be rejected, unless if interpreted according to their legal acceptation, they would be insensible with reference to the context or the extrinsic facts.[] If no such consequence is involved, proof of usage is wholly inadmissible to contradict or in any wise to vary their effect.[§] In no case can it be received where it is inconsistent with, or repugnant to, the contract. Otherwise it would not explain, but contradict and change the contract which the parties have made substituting for it another *493 and different one, which they did not make.[*] To establish such inconsistency it is not necessary that it should be excluded in express terms. It is sufficient if it appear that the parties intended to be governed by what is written and not by anything else.[]
The principle of the admission of such testimony is that the court may be placed, in regard to the surrounding circumstances, as nearly as possible in the situation of the parties the question being, what did they mean by the language they employed?[] What is implied is as effectual as what is expressed.[§] The expression and the implication in this case are equally clear. It is expressed that the vessel should proceed to a port in Cuba, and thence to Europe. It is implied that she should visit no other port in Cuba. Expressum facit tacitum cessare. Under these circumstances, usage can have no application, and proof of its existence is inadmissible. But the usage relied upon is not sustained by the evidence.
It appears that a large proportion of the vessels, perhaps four-fifths, which go laden with coal to Cuba, take on their return cargo elsewhere on the island than at the port of discharge. A few use the same port for both purposes. But the proof is also that the contract in all such cases is expressed according to the intent. There is no proof that where the policy is upon a voyage to one port and back, the vessel may proceed to another port before her return, and that by usage or otherwise, the latter voyage as well as the former shall be deemed to be within the policy.
Viewing the case in this aspect, we find nothing that would warrant the interposition of a court of equity.
We are asked, if we decline to reform the contract, to decree the return of the premium. This we cannot do. *494 We regard the case as one of mere deviation. It is essentially of that character. In that class of cases, the law annuls the contract as to the future, and forfeits the premium to the underwriter. Here equity must follow the law. We cannot apply a different rule.
DECREE AFFIRMED.
[*] Kerr on Fraud and Mistake, 419, 420.
[] Beaumont v. Bramley, 1 Turner & Russell, 41-50; Marquis of Breadalbane v. Marquis of Chandos, 2 Mylne & Craig, 711; Fowler v. Fowler, 4 De Gex & Jones, 255; Sells v. Sells, 1 Drewry & Smales, 42; Loyd v. Cocker, 19 Beavan, 144.
[*] Rooke v. Lord Kensington, 2 Kay & Johnson, 753; Eaton v. Bennett, 34 Beavan, 196.
[] Mortimer v. Shortall, 2 Drury & Warren, 872; Sells v. Sells, supra.
[] Bentley v. McKay, 31 L.J. Chancery, 709; Baldwin et al. v. Mildeberger, 2 Hall, 176; Coles v. Bowne, 10 Paige, 534; Calverley v. Williams, 1 Vesey, Jr., 211.
[§] Harris v. Col. Co. Ins. Co., 18 Ohio, 116; Fireman's Insurance Co. v. Powell, 13 B. Monroe. 311; National Fire Insurance Co. v. Crane, 16 Maryland, 260.
[*] Noble v. Kennoway, 2 Douglas, 513; see also 1 Duer on Insurance, 266, and the cases there cited.
[] Blackett v. Royal Exchange Assurance Co., 2 Crompton & Jervis, 250; Crofts v. Marshall, 7 Carrington & Payne, 607; Phillipps v. Briard, 1 Hurlstone & Norman, 21.
[] Wigram on Wills, 11, 12.
[§] Yates v. Pym, 6 Taunton, 446; Blackett v. Royal Exchange Assurance Co., supra.
[*] Holding v. Pigott, 7 Bingham, 465; Clarke v. Roystone, 18 Meeson & Welsby, 752; Trueman v. Loder, 11 Adolphus & Ellis, 589; Muncey v. Dennis, 1 Hurlstone & Norman, 216.
[] Hutton v. Warren, 1 Meeson & Welsby, 477; Clarke v. Roystone, supra.
[] 1 Greenleaf on Evidence, § 295a.
[§] United States v. Babbit, 1 Black 61.
