The following indorsement made and entered on policy and copied on register this seventeenth day of October, 1906.

[Italics indicate portions written in.]

Attached to the face of the policy is still another white slip dated the 14th day of February, 1907, which gave the insured permission to remove the goods from Korn's warehouse to the warehouse of Redman Van & Storage Company at Salt Lake City. On the 13th day of November, 1907, the goods were destroyed by fire. Proof of loss was made on the 9th day of February, 1908. The defendant refused to pay the loss on the ground that the term of insurance had expired on the 25th day of September, 1907, nearly four months before the fire.

In the complaint it was alleged that the defendant on the 25th day of September, 1906, in consideration of a premium of forty-one dollars and seventy cents, insured the property of the plaintiff "in the sum of three thousand dollars for the term of one year, and thereafter, and on the 17th day of October, 1906, by an indorsement duly made and entered thereon for a valuable consideration, said insurance was reduced to the sum of two thousand, five hundred dollars, and thereupon said policy was by said indorsement extended to expire September 25, 1909." A copy of the policy, to gether with the slips refrred to, was attached to and made a part of the complaint. The complaint also

contained the usual allegations of loss by fire, the ownership, and the value of the property, the furnishing of proofs of loss, and the defendant's refusal to pay the loss. The defendant filed a general demurrer for want of facts, which was overruled. It then answered, admitting the execution and delivery of the policy on the 25th day of September, 1906, in the sum of three thousand dollars, for the term of one year from the 25th day of September, 1906, and that on the 17th day of October, 1906, the amount of insurance and premium was reduced, but denying that the term of insurance was extended by indorsement or otherwise beyond the 25th day of September, 1907, or that there was any consideration paid for the alleged extension, and averring that the policy had expired, and was not in force at the time of the fire. It further averred that the words and fig ures, "Sept. 25/1909," written after the printed words on the margin of the pink slip "date of expiration," on the 17th day of October, 1906, when the amount of insurance and premium was reduced, were inadvertently and unintentionally written by the defendant's agent, and that he erronecusly wrote "1909" for "1907," and that it was not the intention of the parties to extend the term of the insurance beyond the 25th day of September, 1907, and that no such agreement of extension was had or made. Substantially the same averments were made by it in a counterclaim in which it especially alleged that the policy expired on the 25th day of September, 1907; that "on the 17th day of October, 1906, it was mutually agreed by and between the plaintiff and the defendant that said policy should be modified and said insurance should be reduced from three thousand dollars to two thousand, five hundred dollars, and that the premium should be reduced from forty-one dollars and seventy cents to thirty-four dollars and seventy-five cents, and accordingly on said day said policy was so modified and such insurance reduced," as evidenced by the pink slip attached to the policy, but that in writing the words and figures "Sept. 25/1909," after the printed words "date of expiration," the agent of defendant unintentionally and inadvert

ently wrote the figures "1909," instead of "1907," and that the policy with such erroneous indorsement "was unintentionally and inadvertently and unconsciously accepted by the plaintiff;" that the indorsement so made "did not conform to the true and actual intention of the parties, and that, in order to make the indorsement conform" to such intention, "it is necessary that said indorsement be amended and reformed so that the figures '1909' should read '1907.'" It thereupon prayed for a reformation of the policy in such particular and for a cancellation of it. The plaintiff filed a reply denying the material allegations of the counterclaim, and pleading an estoppel on account of laches, conduct, and neglect on the part of the defendant.

The issues presented by the counter claim were first tried to the court, who found the facts substantially as follows: On the 25th day of September, 1906, the plaintiff obtained a loan from Lauer through one Block, his attorney in fact, and gave him a promissory note, to secure which she gave a mortgage upon the property in question, consisting of household goods. Block, acting for Lauer, refused to make the loan unless the property was insured. A portion of the loan was paid to the plaintiff. Block retained the rest of it to pay some bills owing by plaintiff, a commission to himself for making the loan, the first month's interest, drayage and storage charges, and the premium for the insurance. Before the insurance was obtained, Block caused the goods to be moved and stored in Korn's warehouse in Salt Lake City. On September 25, 1906, for the benefit of Lauer and the plaintiff, he procured the policy of insurance from the defendant, insuring the property against loss by fire in the sum of three thousand dollars for a period, as expressed in the body of the policy, of one year, or to and including the 25th day of September, 1907, with a provision contained upon a slip attached to the policy that the loss, if any, under the policy, was to be paid to Lauer. On the 17th day of October, 1906, Block applied to the agent of the defendant for a modification of the policy. He then delivered the

38 Utah-30

policy to the agent of the defendant, who reduced the insurance from three thousand dollars to two thousand, five hundred dollars, and the premium from forty-one dollars and seventy cents to thirty-four dollars and seventy-five cents, and as evidenced by the pink slip attached to the face of the policy. The court also found that at the same time the agent of the defendant who transacted the business in its behalf wrote on that slip after the printed words, “date of expiration," the words and figures, "Sept. 25/1909." The slip was made in triplicate, a copy of which was sent to the home office of the defendant, one kept at the local office and copied in a book called "register of insurance" and one attached to the policy of insurance, and that "said policy was thereupon and by said indorsement in the writing of defendant's agent made to expire on September 25, 1909," and that the policy was thereupon redelivered to Block for the mortgagee. On the 22d day of December, 1906, the plaintiff paid and discharged the note and mortgage, where upon Block delivered the policy to the plaintiff, who notified the defendant that Lauer's interest in the property had ceased. On the 14th day of February, 1907, the plaintiff applied to the agent of the defendant, and was given permission to remove the goods from Korn's warehouse to the warehouse of the Redman Van & Storage Company. In doing so an agent, acting for her, delivered the policy to the agent of the defendant, who, by indorsement on a slip attached to the policy, gave permission to move the goods as requested. While the goods were stored in the warehouse of the Redman Van & Storage Company they were destroyed by fire on the 13th day of November, 1907. The court further found that it was the custom of the defendant not to insure property against loss by fire in warehouses for a period longer than one year, but that the plaintiff had no knowledge of such custom; that the defendant made no claim of any mistake in the indorsement with respect to the expiration of the term of the policy until after the property was destroyed by fire; that the defendant, notwithstanding the means afforded it, made no effort to ascertain the mistake,

or to correct it, or to give any notice to the plaintiff, until after the loss had been sustained by her; that she had no information or means of knowledge that the indorsement was untrue, and relying upon the indorsement and believing it to be true, and that the property was protected against loss by fire in the sum of two thousand, five hundred dollars up to and including the 25th day of September, 1909, she obtained no other insurance.

Upon such findings the court stated conclusions of law that, "owing to the laches, conduct, and neglect of said defendant, it is not entitled to any relief in a court of equity, or to a reformation of said indorsement on said policy," and that it was not entitled to have the figures of the indorsement changed from "1909" to "1907." A judgment was thereupon entered dismissing the counterclaim.

The issues presented by the complaint were then tried to the court and a jury. The plaintiff put in evidence the policy of insurance, together with the slips attached thereto, gave proof of the ownership and value of the property and its destruction by fire, the furnishing to the defendant of proofs of loss, a demand upon it and its refusal to pay the loss, and rested. The defendant thereupon offered to prove that its agent in charge of its business at the request of Block on the 17th day of October, 1906, reduced the amount of insurance and the premium, but that there was nothing said at that time, and no transactions had, with respect to an extension of the term of insurance beyond the date of September 25, 1907, that there was no consideration paid for the claimed extension, and that the term of insurance was not in fact extended beyond the time shown in the body of the policy as originally made. The offer was refused. The defendant thereupon rested, and requested the court to direct a verdict in its favor. The court refused the request, and upon motion cf the plaintiff directed a verdict in her favor. From the judgment entered upon the verdict, and the judgment dismissing the counterclaim, the defendant has prosecuted this appeal.