1880 ETNA LIFE v. BRODIE. mistake of one of the parties. The rules and principles of law and equity applicable to such a case are very THE different from those applicable to this case. When, pre-co vious to the receipt of the fourth premium, after the alleged mistake was communicated to the respondent, the company, finding one of two mistakes had been Henry, J. made by their agent and others representing them, had it open to them to have the policy cancelled, and in that case proof of such a mistake on their part, independently of the respondent, would have enabled them to have the policy set aside or cancelled; but they could not get that done except on terms of such equitable relief as the respondent would have been entitled to. Here an attempt is made to avoid the consequences of the gross errors and culpable negligence of the officers and agent of the company without any of the legal consequences. The respondent, who must be presumed to have intended to get and to have agreed for a policy for $2,000, is to be deprived of his right to have the policy he wished and intended, and to have one fastened upon him which, as Orr himself says, he said he would not have. It is inequitable and unjust that the respondent should suffer through the mistake or negligence of the other parties, and that he should be kept about three years in the dark. Orr says that he knew at once, as soon as the respondent said the policy was for $2,000, that there was a mistake; but that he could not tell where it was until he got back the application, and then the circumstances came to his mind. It is, to say the least, a little singular that he countersigned the policy having in the margin conspicuously placed in large figures, and quite near together, the amount of the policy and the annual premium. He also signed two receipts, both stating the policy at $2,000, and the annual premiums paid. One would certainly have thought that the first glance at the 1880 THE margin of the policy or at the receipts which he signed would have shown that there was an error to one ETNA LIFE who, so soon after, was so immediately affected by the mention of the amount of the policy by the responBRODIE. dent. What, too, can be said of those at the head Henry, J. office? They issued and entered the policy, endorsed INS. Co. v. and filed away the application, marking it for $2,000 and the annual premium payable, and they filled up and forwarded receipts for two years as for a policy for that amount. I have no hesitation in saying there was culpable and gross negligence in repeating so often the mistake, whatever it was, and after which the company comes with a bad grace, to ask for rectification. When it was at last accidentally discovered that either the policy was too large, or the premium too small, the company, I think, were not justified by the evidence in the position they adopted. That position could only be sustained by clear satisfactory and unsuspicious evidence that both parties agreed for a policy for $1,000. To vary an agreement such evidence has always been considered necessary, and called for. I cannot find it in this case. It is more than doubtful, as I view it, and leaves the strong and irresistible impression that the respondent never agreed to accept a policy for less than $2,000; that both parties intended a policy for $2,000, but that Orr, by mistake, inserted the wrong amount of premium. If his statements, which I have quoted, are correct, and being made against his own and his company's interest we must so take them, no other than the conclusion I have drawn can legitimately be arrived at. If, as Orr stated, "the plaintiff always believed he was insured for $2,000," and "that he has never admitted since then that he was wrong;" that he believed him to be perfectly honest in his belief, and that he did not think he ever had the intention of defraud 1880 THE Ins. Co. anything ETNA LIFE certainly v. BRODIE. ing the company, or wronging the company, and that when effecting the insurance he said "that he would have nothing to do with but a $2,000 policy," and that "it was $2,000 that he wanted, and that he has always since contended for it," how can any one conclude that Henry, J. he agreed to a policy for $1,000? If that be the true position, where, then, under the pleading, is the defence to the respondent's claim? I must say I can see none. Besides, the respondent was examined as a witness on the part of the appellants, but his evidence was put aside by them, a fact which should have some weight, when he and Orr were alone present at the time of the application. The company took the risk of examining him, and must submit to the reasonable construction to be put upon their excluding his evidence-a matter in itself not, perhaps, of much weight, but significant, when considering the very doubtful and suspicious position created by Orr's testimony and the other circumstances in evidence. Orr says he (the respondent) always, in good faith, considered himself insured for $2,000, and if so, it is not difficult to divine what his evidence was on that point. If the case otherwise were clear as to the amount of the policy, the rejection of the evidence would, of course, have little weight; but, under the circumstances, I think it is entitled to some consideration. Independently, however, of that consideration, I think the evidence is altogether too suspicious, contradictory and defective to sustain the defence set up by the pleas. I think the appeal should be dismissed, and the judgment of the Court of Queen's Bench affirmed, with costs. GWYNNE, J.: If when the mistake which the appellants insist there was in the amount stated in the policy was first dis 1880 covered, and the appellants caused to be offered to the respondents an identical policy for $1,000, instead of ETNA LIFE for $2,000, and the respondent refused to accept such THE Ins. Co. v. BRODIE. policy, the appellants had then taken proceedings calling upon the respondent to exercise an option Gwynne, J. to have the whole contract annulled, or to have the policy for $1,000 in substitution for the one for $2,000, and if upon such proceedings the appellants had satisfied the court that the mistake which they insisted upon did in fact exist, although it may have been unilateral only, that is the mistake of the appellants and their officers only, both upon principle and upon the authority of Garrard v. Frankel (1) and of Harris v. Pepperell (2) the appellants would have been entitled to succeed. When upon the 13th October, 1869, appellants agents, Pedlar & Co., sent to the respondent the letter of that date, wherein they say: "We herewith hand you the company's receipt, keeping your policy No. 26,863 in force, the company however claiming to be liable thereunder only to the extent of one thousand dollars for the reasons stated in their tender and protest by J. H. Isaacson, N. P. of the 12th instant, you, on the other hand, claiming to hold said policy for the full amount of two thousand dollars, for the reasons stated in your tender and protest by Mr. Lighthall, N. P., of 13th October, this day, the present payment of premiums and all future similar payments not in any manner to affect the rights and pretensions of the parties respectively in regard to the amount for which the policy should be held; " and when this letter was assented to by the respondent, and was acted upon by both parties, we must, in order to give precise effect to this agreement, hold that the parties have assented that the policy shall be treated as a policy for $1,000, if (1) 30 Beay. 445. (2) L. R. 5 Eq. 1. 1880 ETNA LIFE v. BRODIE. the appellants should succeed in satisfying the court that the policy was issued by them by mistake THE for $2,000, and the same question is now open Ins. Co. notwithstanding the additional lapse of time, and notwithstanding that the respondent is plaintiff in an action seeking to enforce the policy as one for Gwynne, J. $2,000, as if proceedings had been taken in 1869 by the appellants as plaintiffs calling upon the respondent to exercise the option of accepting a substitutionary policy for $1,000, or of wholly avoiding the contract. For the reasons stated by the Chief Justice of the Court of Queen's Bench, sitting in appeal, I think it clearly established that the policy was issued by mistake for $2,000, when one for $1,000 was all that was really intended to have been given for the consideration agreed to be paid. The statement in the margin, which is positively sworn to have been there inserted before the respondent signed the application, is wholly inconsistent with the amount being intended to be for $2,000, as stated in the body, and I can see nothing in the evidence to contradict this statement, for I must say, I attach no weight to the evidence of Mr. King. It was argued that the reading the matter in the margin so as to affect what was in the body of the application was a violation of the principle that a marginal note upon an instrument, which marginal note was, as was contended, not signed, could not override the instrument which was signed. But this principle has no application here, for that there was a mistake in inserting the $2,000 in the policy and in the body of the application also, is a fact which the appellants may establish by any evidence they can adduce, parol or otherwise, and the variance between the amount mentioned in the margin and in the body of the application is only referred to as a piece of evidence to assist in establishing the mistake insisted upon; and assuming that marginal entry to have |