1879 THE ETNA LIFE Ins. Co. v. BRODIE. paid on the thirteenth of October, eighteen hundred and sixty-seven, is as follows: "ETNA LIFE INSURANCE OF HARTFORD, CT. Hartford, 13th Oct., 1867. "Received from W. Brodie, one hundred sixty-three dollars, premium due Oct. 13, 1867, on policy No. 26,863, insuring $2,000 for 12 months ending on the 13th day of October, 1868, at noon. "Not binding until countersigned by S. Pedlar & Co., agents at Montreal, Ca. "Premium $163.44. (Signed,) S. Pedlar & Co., "(Signed,) T. O. Enders, Agents." A like receipt was given on the thirteenth of October, eighteen hundred and sixty-eight. The subsequent five receipts are in form following: "Hartford, 13th Oct., 1869. "Received from W. Brodie, one hundred sixty-three 44 dollars, premium due Oct. 13, 1869, on policy No. 26,863, insuring $1,000 for 12 months ending on the 13th day of October, 1870, at noon. "Not binding until countersigned by S. Pedlar & Co., agents at Montreal, Ca. "Premium $163.44. "(Signed) S Pedlar & Co., "(Signed) T. O. Enders, Secretary." "Agents." แ "On the twelfth October, eighteen hundred and sixtynine, the company, through W. F. Lighthall, N.P., served a notarial protest on respondent, alleging that by an oversight and by inadvertence a policy was issued to him by the company for the sum of two thousand dollars instead of one thousand dollars, and that the error had only very recently been discovered; and the protest further demanded the return of this policy, and tendered another for the sum of one thousand dollars. 1879 Ток The respondent claims that the one so offered was in any event incomplete, through its not being countersigned by the local agents, a formality, according to ETA LIFE respondent's pretensions, rigorously required by its terms as a condition precedent of effectiveness. "On the thirteenth October, eighteen hundred and sixty-nine, the day following the above protest, respondent, by a counter and answering protest served upon the company, maintained his right to an insurance and policy of two thousand dollars, and tendered the premium due on that date; by this protest respondent further declared that he would deposit the premium for the benefit of the company in some chartered bank, in the event of a refusal to receive it, and further that he would hold the policy in full force and effect. From this date to the maturing of the policy on the thirteenth October, eighteen hundred and seventy-four, the respondent continued to pay, and the appellants to receive, the annual payments, without prejudice to, and under reserve of all rights on either side. A letter to this effect passed from the company to the respondent, as follows: "Etna Life Insurance Company, "Canada Branch Office, "20, Great St. James St. "S. Pedlar & Co, 33 “DEAR SIR,-We beg to acknowledge the receipt from you of one hundred and one dollars in cash, and a premium note of $81.72. 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 Ins. Co. v. BRODIE. 1879 THE ETNA LIFE INS. Co. v. BRODIE. 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 premium 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. "This letter was assented to and acted upon by both parties. "The policy matured on the thirteenth of October, eighteen hundred and seventy-four. Respondent filed his claim for principal and profits as due on a two thousand dollar policy, and on the twenty-sixth of November following, instituted the present action, returnable on the tenth of December. "On the day previous to the return, appellants, by a notarial tender and protest, served on respondent, set out the details of the profits and of the amounts loaned from their point of view, and tendered respondent the sum of eight hundred and thirty-two dollars and ninety-seven cents, as the balance thus shewn to be due, together with the further sum of one dollar and fifty-three cents for interest. "It also asserted the appellants' readiness to pay costs incurred. "The endorsement on the original application was for two thousand dollars; at the time the appellants allege they discovered the alleged mistake, this was altered to one thousand dollars. "In the Court of Queen's Bench doubts existed in the minds of the Judges as to the exact amount due re spondent for profits under either view of the case. To obviate a return of the record to the Court below for the purpose of obtaining more definite evidence on this point, the parties filed the following admissions : "1st. That the amount due by appellant to respondents, and to be deducted from any sums payable under said policy, is six hundred and fifty-three dollars and seventy-six cents. "2nd. That the profits on said policy, regarding it as a two thousand dollar policy, would, under the system of distribution of profits followed by said company at the date of the issue of said policy, amount to four hundred and eighty-six dollars and seventy-three cents, respondents claiming that they were under no obligation to continue said plan. "3rd. That under the system introduced and adopted by the said Company in the year eighteen hundred and seventy-one, but which appellant protests he never assented to, no profits are divisible in respect of said policy, if it be regarded as for two thousand dollars. "4th. That if said policy is held to be a one thousand dollar policy, the profits upon it under either of said systems would amount to four hundred and eighty-six dollars and seventy-three cents. "The foregoing admissions are under the reserve of the right of respondent to appeal from any judgment rendered on the basis that said policy is to be held a policy for two thousand dollars. "By the judgment in the Court of Queen's Bench, the judgment of the Superior Court was reversed and the company condemned to pay respondent the sum of one thousand eight hundred and thirty-two dollars and ninety-seven cents with interest from the twenty-sixth of November, eighteen hundred and seventy-four, and also the costs of suit in the Superior Court, and Court 1879 THE ETNA LIFE INS. Co. v. BRODIE. of Queen's Bench. Dorion, C. J., and Tessier, J., dissented. "From the pleadings, admissions, papers and evidence of record, the following question results: Is respondent entitled to recover as upon a policy of two thousand dollars or not, and to receive the amount awarded for profits by the Court of Queen's Bench? "It is agreed that the original record is to be transmitted to the Supreme Court with right to either party to refer to it." Mr. Bethune, Q. C., and Mr. Trenholme for appellants: Our first proposition is that appellants ought not to be condemned as for an insurance of $2,000 on a policy which they claim it is clearly established issued purely by error for $2,000 instead of for $1,000, and is not in accordance with the antecedent proposal and bargain for insurance as understood by both parties; certainly as understood by appellants, and as it ought to have been understood by respondent. The company never intended to give more than a $1,000 policy for a yearly premium of $163.44. Although the memorandum of amount of terms in the margin of the application does not alone override the policy, yet it is part of the contract, and that, supported as it is by parol evidence, by the premium paid, the published rates of the company, the contemporaneous entry made by the agent in this register of the correct amount, and other facts and circumstances, entitles the appellants to succeed. Philipps on insurance sec. 68, and 2 Arnould 588, show the margin notes are to be taken as part of the contract. The present case stands on a very different footing from that of an insurance company seeking to turn the loss on the assured after irreparable loss has occurred. It is the case of a company, before loss and while the parties can be practically replaced in their former |