Boak et al. vs. New York Life Insurance Company et al.

it corrected. The natural presumption, it seems to us, is that the Policy is what Charles Donnelly, the father, intended it should be; but whether this is so or not, it is clear that the mistake, if there was a mistake, was not mutual, because the Insurance Company denies that there was any mistake. The Plaintiffs have submitted no evidence in support of their claim, other than the Policy itself together with the application. The mistake which is claimed is not apparent on the face of the Policy, even as we read it in connection with the application. At any rate, it is not a palpable mistake; nor does it appear that there was any fraud whatever on the part of the Insurance Company.

As to the authorities on the subject of correcting and reforming written instruments, they are numerous, precise and of one accord:

"Though the policy fails to express the intent of the complaining party as to the matter in regard to which reformation is sought, the reformation will not be granted, unless there was the same intent by the other party. The mistake by which the variance is introduced must be either mutual, or induced by the fraud of the other party." Cooley's Briefs on the Law of Insurance, Vol. 1, page 862.

"Reformation is appropriate when an agreement has been made, or a transaction has been entered into or determined upon, as intended by all the parties interested, but in reducing such agreement or transaction to writing, either through the mistake common to both parties, or through the mistake of the plaintiff accompanied by the fraudulent knowledge and procurement of the defendant, the written instrument fails to express the real agreement or transaction." Pomeroy's Eq. Jur., 3rd Ed., Vol. 2, page 1541.

"A mistake on one side may be a ground for rescinding a contract, or for refusing to enforce its specific performance; but it cannot be a ground for altering its terms." Adam's Eq., 171.

"The power of courts of equity to reform written instruments is one in the exercise of which great caution should be observed. To justify the court in changing the language of the instrument sought to be reformed (except in case of fraud) it must be established that both parties agreed to something different from what is expressed in the writing, and the proof upon this point should be so clear and convincing as to leave no room for doubt." Mead vs. Westchester Fire Ins. Co., 64 New York, 455.

"The standard of proof in such cases is 'clear, precise and indubitable.' What is meant by 'indubitable' proof, in connection with such cases, is evidence that is not only found to be credible, but of such weight and directness as to make out the facts alleged beyond a reasonable doubt." Boyertown Nat. Bk. vs. Hartman, 147 Penna., 562.

"The degree or measure of proof required to reform a written instrument on the ground of fraud, accident or mistake has been the subject of frequent consideration by this court. In Boyertown National Bank vs. Hartman, 147 Pa., 558, Sterrett, J., quoting from Hart vs. Carroll, 85 Pa., 508, states the rule thus: "The standard of proof in such cases (suits to reform written instruments) is 'clear, precise and indubitable.'" Highlands vs. Railroad Co., 209 Penna., 292.

"In order to reform a deed on the ground of mistake, it must clearly appear by the testimony of witnesses who distinctly remember the facts that a mistake was made and that the writing does not express the agreement. The testimony must be clear, precise and indubitable, and of such weight and directness as to carry conviction to the mind." Graham vs. Carnegie Steel Co., 217 Penna., 37.

The provision in the Policy that the Company will pay "to the said beneficiary, as specified above, if the insured be living, on the Thirtieth day of October, 1909, and if this Policy shall then be in force, the amount of Seven hundred and ninety Dollars and forty Cents, * * * and that it will pay an equal amount annually only, thereafter during the lifetime of the

Boak et al. vs. New York Life Insurance Company et al.

said insured," is difficult to understand, in view of the other provisions of the Policy, and in view of the following benefit given to the insured in the Provisions, Requirements and Benefits referred to in the Policy, and made part of it, namely: "At that date (to wit, October 30th, 1908), if the insured is living, and this Policy is in force. the insured shall be entitled to one of the following benefits: * * * Fourth. To surrender the Policy for cancellation, and to convert its entire value, as above, into an annual income during the life of and payable to the insured; it being hereby guaranteed that the annual amount of such income shall not be less than Twelve hundred and sixtynine dollars and twenty cents." These two provisions are entirely different, and the amounts payable under them were computed by the Insurance Company according to different standards. Viewing the Policy as a whole, and thereby including the Provisions, Requirements and Benefits referred to in it, as well as the application, we are unable to see that the beneficiary or beneficiaries had any interest in it after the expiration of the twenty-year period, unless there be something in this provision respecting the beneficiary to indicate that the beneficiary or beneficiaries, as distinguished from the insured, retains or retain. her or their interest, as provided for, within the twenty years, or at least some interest under certain contingencies. The words "beneficiary, as specified above, if the insured be living," are interlined in this provision, and the word "beneficiary" is substituted for the word “insured," which is erased with red ink. It is not conclusive evidence that the persons referred to as beneficiaries were intended to be the beneficiaries after the twenty-year period, and until the death of the insured, to the exclusion of the insured, except as one of the beneficiaries, because the Policy gives to the insured exactly one year before, to wit, the Thirtieth day of October, 1908, one of four benefits, as he may elect, provided that he be living on that date, and the Policy be then in force. The insured having elected to take one of these four benefits, and having so notified the Company of his election, the Policy was not in force on the 30th day of October, 1909, and therefore, there is no obligation on the part of the Company to pay to the beneficiary the sum of $790.40 annually from the 30th of October, 1909, during the lifetime of the insured. Nor do the beneficiaries claim under this provision, their claim being based on the provision in favor of the insured. In view of the fact that the Insurance Company denies that there was any mistake in the provisions of the Policy, and in effect says that these provisions are in accordance with the understanding of the parties at the time the Policy was made and delivered, we cannot see that this provision in favor of the beneficiary is conclusive evidence, or any evidence, to the contrary.

As we view this Policy the beneficiaries had a vested interest in it until the expiration of the twenty-year period, provided the insured be living. The Policy could not be changed during this period without the consent of the beneficiaries named in it; but after the expiration of the twenty-year period their interest ceased, and the person, and only person, in whom there was a vested interest was the insured himself. As has already been said, Charles Donnelly, the father, during his lifetime made no attempt to reform the Policy, nor did the beneficiaries, or any of them; nor did the insured. We do not understand that this view of the Policy is in conflict with the decision of the Supreme Court of Pennsylvania, as appears in the opinion of Mr. Justice Potter in the case of Entwistle vs. Insurance Co., reported in 202 Penna. State Reports, page 141. In that case it was provided in a Policy of life insurance that the proceeds of the Policy should be paid to the wife if she survived her husband, the insured, or in the event of her prior death, to the children, but if the insured survived wife and children, then to his legal representatives. There was this provision in it, namely: "This policy may be converted into cash at the option of the holder at any time after the expiration of fifteen years from the date hereof, for the amount indorsed on

Boak et al. vs. New York Life Insurance Company et al.

the back of this policy, corresponding to the age of the insured at the time of such conversion, provided that the policy shall have been first paid up by the payment of ten full annual premiums." After the payment of ten full annual premiums, and when the children were living, the husband and wife joined in an assignment of the policy, and the assignee demanded the cash balance on the ground that he was the "holder" of the policy. The demand was refused on the ground that not only the wife, but the children, of the insured were the beneficiaries or "holders" of the policy, and that neither the husband, nor the wife, nor both together, had power to destroy the vested interest of the children.

During the twenty-year period the beneficiaries named in the policy were the holders of the policy; after the expiration of the twenty years the insured was the holder of it.

The plaintiffs in this case, on the ground of mutual mistake, ask the Court to reform the Policy, so that it may read substantially as follows: "At that date (to wit, October 30th, 1908), if the insured is living, and this Policy is in force, the beneficiary or beneficiaries above named, to wit, Roselia Donnelly, or, in event of her prior death, her children by Charles Donnelly, or their executors, administrators or assigns, shall be entitled to one of the following benefits" (naming four).

We are not satisfied that there was a mutual mistake at the time the Policy was executed and delivered. On the contrary, we are of opinion that there was not only no mutual mistake, but that the Policy gave full expression to the intention of all of the parties whose names are connected with its execution and delivery. The defendant, Charles Donnelly, Jr., is therefore entitled to receive the entire proceeds of the Policy, namely, the sum of money which has been paid into Court, and admitted by all the parties to be the full amount of the Insurance Company's liability. The plaintiffs, however, through the Executors of the estate of Charles Donnelly, deceased, paid the amount of the last premium to the Insurance Company, in the belief that they were entitled as beneficiaries to share in the proceeds, which Charles Donnelly, Jr., the insured, elected to take on October 30th, 1908. Although this premium was not paid at the request of Charles Donnelly, Jr., the insured, we do not look upon it as a mere voluntary payment. It was made under a claim of right, and at a time when it was absolutely necessary to make such payment in order to preserve the life of the Policy. The payment was made by way of precaution, in order to avoid the possibility of the loss of benefits accruing from the Policy. Why Charles Donnelly, Jr., was not consulted before making it does not appear, but it is clear that his interests have not in any way been injuriously affected by said payment. We are of opinion that the Executors should be reimbursed the amount so paid without interest, such reimbursement to inure to the benefit of the plaintiffs.

For the reasons above stated we reach the following

CONCLUSIONS OF LAW.

FIRST. The Policy of insurance in question is not in any respect the result of a mutual mistake between the parties who applied for it and the Insurance Company which issued and delivered it. On the contrary, it correctly expresses the intention and understanding of said parties at the time it was applied for, executed and delivered.

SECOND. The defendant, Charles Donnelly, Jr., is entitled to the full amount of proceeds of the Policy, as paid into Court by the defendant, The New York Life Insurance Company, with the consent of all parties to this proceeding, and admitted by all parties to be the exact amount of money for which the said Insurance Company is liable on said Policy. From this total amount, however, should be deducted, without interest, the sum of money

Boak et al. vs. New York Life Insurance Company et al.

paid to said Insurance Company by the Executors of the estate of Charles Donnelly, deceased, on account of the last premium due on said Policy.

THIRD. Out of the proceeds of said Policy, as paid into Court, the Executors of the estate of Charles Donnelly, deceased, should be reimbursed the sum so paid by them on account of said last premium, said reimbursement to inure to the benefit of the plaintiffs.

FOURTH. The costs of this proceeding should be borne equally by the piaintiffs and the defendant, Charles Donnelly, Jr.; that is to say, the plaintiffs should pay one-half of the same, and the defendant, Charles Donnelly, Jr., one-half of the same.

A decree should be drawn in accordance with these conclusions.

Equity

Paine, Jr., vs. Limbach.

Building restrictions-Meaning of

Preliminary injunctions.

The vendor of land filed a bill praying for a preliminary injunction to restrain the vendee from violating the terms of sale which provided, inter alia, that "no barn, stable, coop or other building shall be built, erected or maintained nearer to the line of Washington avenue than 60 feet. (which barn or stable must be appurtenant to a store or private residence). That no dwelling house or building costing less than $2,500.00 shall be built upon said premises, nor shall any shed or structure of any nature be built, erected or maintained on said premises before a dwelling or building for business purposes costing $2,500.00 has been erected thereon. The defendant in his answer admitted the erection of temporary shed to hold materials to be used in the construction of a building which would comply with the building restrictions. Held, that the shed erected by defendant was not within the meaning of the restriction and the preliminary injunction dissolved but that the bill to remain with leave to ask for a renewal of the preliminary injunction in case defendant did not finally remove the sheds. In Equity-Motion to continue preliminary injunction. C. P. No. 4, Allegheny County. No. 190 Second Term, 1909.

J. E. McCalmont, for plainaiff.

Kinnear, McCloskey & Best, for defendant.

SWEARINGEN, P. J., February 1, 1909.-The plaintiff has alleged in his bill that the defendant is violating a restriction in the agreement by which he holds the real estate described in the bill. The restriction which it is claimed the defendant is violating is that "No barn, stable, coop or other building shall be built, erected or maintained nearer to the line of Washington avenue than sixty (60) feet * .* * (which barn or stable must be appurtenant to store or private residence). * * That no dwelling house or building for business purposes costing less than $2,500 shall be built upon said premises, nor shall any shed or structure of any nature or kind be built, erected or maintained on said premises before a dwelling or building for business purposes costing $2,500 has been erected thereon.

*

* *

It is then alleged that no building has been erected upon said premises. The plaintiff then alleges that the defendant is erecting and constructing on said premises a "small shed or workshop, at a cost greatly below the cost of a building required by the terms" of the said agreement of purchase, and that his property and that of others held under the same restrictions will be thereby greatly depreciated in value.

A restraining order was granted, and Saturday, January 30, 1909, was fixed as the time for hearing upon the motion to continue the same. At that time the defendant appeared and filed an Answer, in which he averred that he is preparing to erect a fireproof building upon said premises, at a cost of

Paine, Jr. vs. Limbach.

not less than $6,000, and that, in order to protect the lumber, cement and other material which are to be used in the erection of said building, he is erecting upon said premises a temporary covering in front of the main building site, which will have merely a roof and two sides, without floor, and that this is to be used merely to protect his materials during the erection of his permanent building.

There is no evidence to show that the foregoing averments of the Answer are not true. The only question there is, whether or not the building, which the defendant admits he is erecting, is within the prohibition contained in said agreement of purchase. We do not think it is. We think the purpose of the restrictive clauses in said agreement was to prevent the construction of permanent buildings of the kind prohibited, and not to prevent the erection of mere temporary conveniences which a contractor might need to protect material while engaged in constructing permanent buildings upon the premises. A contractor must store building materials upon or near the premises where he is engaged in erecting a building, and it is doubtless just as necessary that some means be provided to protect such materials from the weather and from other dangers as it is to provide the materials themselves. It appears that the building which the defendant proposes to erect is nothing more than a mere temporary device, such as above described. If this be true, it is not one of the kind of buildings whose erection and maintenance are prohibited by the restrictive clauses of said agreement of purchase. We shall therefore dissolve the preliminary injunction heretofore issued, but the proceeding will not be dismissed or discontinued. On the contrary, it will remain, and if the defendant shall be found hereafter to be acting in violation of said building restrictions the motion for a preliminary injunction can be renewed. Thereby the plaintiff's rights will be amply protected.

And now, to wit, February 1, 1909, after argument and upon consideration, the preliminary injunction heretofore issued in the above stated case is dissolved.

Commonwealth vs. Lissen et al.

Summary convictions—Appeals—Acts May 2, 1901, and April 22, 1905-Constitutionality of.

The Acts of May 2, 1901, and April 22, 1905, relating to the method of taking appeals from a summary conviction, are in conflict with the method prescribed by Art. V, Sec. 14, of the Constitution of Pennsylvania, and hence unconstitutional. All appeals must therefore be taken under the Act of April 17, 1876, which by reason of the later Acts being unconstitutional, still remains in force.

Motion to quash the appeal by defendants from conviction on charge of disorderly conduct defined in the Act approved the 2nd day of May, 1901, P. L. 132. In the Court of Quarter Sessions of Washington County, Pennsylvania. No. 126 May Term, 1909.

A. M. Linn, for Commonwealth.

Erwin Cummins, for defendants.

MCILVAINE, P. J., July 2, 1909.-The Constitution of Pennsylvania has in it a provision which reads as follows: "In all cases of summary conviction in this Commonwealth, or of judgment in suit for a penalty before a magistrate or court not of record, either party may appeal to such court of record as may be prescribed by law, upon allowance of the appellate court or a judge