It chiefly urges that the facts found by the court on the issues presented by the counterclaim are not supported by the evidence, that the conclusions of law stated and the judgment rendered dismissing the counterclaim are not sup ported by the findings, and that the court erred in overruling the demurrer, in refusing defendant's offers of proof on the trial before the court and jury, in refusing its request to direct a verdict in its favor, and in directing a verdict in favor of the plaintiff. All these assignments raise questions involving the manner in which and the purpose for which the words and figures "Sept. 25/1909" were written on the pink slip after the printed words "date of expiration," the conduct of the parties with respect thereto, and the legal effect to be given to the words and figures as written on the pink slip when considered in connection with the policy as a whole. It is not necessary to separately consider and review these assignments. We may say that in the main the findings of the court are supported by the evidence, except in the particulars that the indorsement or writing on the pink slip "made the policy to expire on the 25th day of September, 1909," that the plaintiff had no information or means of knowledge "that the endorsement in such particular was untrue," and the inference, arising from the findings as made, that Block in obtaining the insurance acted alone for Lauer, and not also for the plaintiff. In these particulars both the plaintiff and Block testified that the plaintiff directed and authorized him to obtain insurance upon the goods, he testifying that she directed him to obtain it for one year, she for three years. The evidence is without conflict that the words and figures "Sept. 25/1909," written on the pink slip on the 17th day of October, 1906, were written inadvertently, and that the figures "1909" were by mistake written for "1907." It came about in this way, and substantially as found by the court: After the plaintiff had concluded negotiations for the loan and had directed and authorized Block to obtain insurance on the goods, she left Salt Lake City, and went to Nevada. She left part of the borrowed money with Block to pay some bills owning by her, one month's

storage and interest, drayage, a commission, and the premium for the insurance. Block obtained the policy on the 25th day of September, 1906, for three thousand dollars, and for a period of one year. The premium was forty-one dollars and seventy cents. Later he found that he did not have money enough (after paying a commission to himself of eighty-five dollars for making the loan, the interest at five per cent per month, drayage, etc.), to pay a premium of that amount. He thereupon called upon the defendant's agent who had transacted the business with him, and requested him to reduce the insurance from three thousand dollars to two thousand, five hundred dollars. Block, who had possession of the policy, and who held it for the mortgagee, took it to the office of the defendant's agent on the 17th day of October, 1906. The agent consented to a reduction of the insurance and of the premium. The agent thereupon wrote on the pink slip "insurance under this policy is hereby reduced to two thousand, five hundred dollars, premium reduced to thirty-four dollars and seventy-five cents,' and on the margin thereof wrote after the printed words "date of expiration" the words and figures "Sept. 25/1909." In doing so he inadvertently wrote "1909" for "1907." It is very clearly made to appear that the agent of the defendant and Block had no conversation, nor any negotiations whatsoever, with respect to an extension of the term or period of insurance. The policy was then redelivered to Block, who kept it until the loan was paid, in December, 1906. It was then delivered to an agent of the plaintiff, who paid off the loan for her. The policy was kept by that agent until in May, 1907, when it was delivered to the plaintiff, about four months before the time expressed in the body of the policy had expired. She testified that in May, 1907, when she received the policy, she "examined the policy at that time," and saw the pink slip, and because of the indorsement thereon, believed that the policy did not expire until in September, 1909, and that she took out no other insurance. That the figures "1909" were inadvertently, and through mistake, written for "1907," is not con

troverted by the plaintiff. She, however, contends, and the court, as stated in its conclusions, preceded upon the theory, that she had no knowledge, and no means of knowledge, of the mistake and inadvertence; that Block was not her agent, and that his mistake or his knowledge of it cannot in law be charged to her, and that the defendant, because of its laches, conduct, and neglect is now estopped from asserting that the mistake was in fact made, or that the parties did not intend to extend the term or period of insurance. These conclusions are based upon the facts that three copies of the pink slip were made, one sent to the home office, one copied in the register of insurance at the local office, and one attached to the face of the policy, and that the defendant's agent in February, 1907, attached to the face of the policy the written slip giving permission to remove the goods from one warehouse to another, and upon the deductions drawn from such facts that means of knowledge and opportunity was afforded the defendant by ordinary diligence and inspection to discover the mistake, who, in law, must be charged with a discovery and knowledge of it prior to the 25th day of September, 1907, and with negligence in not notifying the plaintiff thereof prior to that time. We think such facts were not sufficient to work an estoppel, or to so charge the defendant with negligence. Had the defendant done some act or thing after the 25th day of September, 1907, recognizing the existence of the policy, or treating it as existing, a different principle might well be applied. The defendant's agent in granting permission in February, 1907, to move the property from one warehouse to another, when the policy admittedly was in force, cannot be said to be an act inconsistent with the claim now made, or the position taken, by the defendant. Block in obtaining the insurance and in transacting the business in that regard was the agent of the plaintiff as well as the agent of Lauer. The mistake made was the mutual mistake of Block and of the defendant's agent, for it very clearly is made to appear that neither intended to extend the period of insurance. The same principle which makes

1

the defendant chargeable with the mistake of its agent also renders the plaintiff chargeable with the mistake of Block. The mistake occurred while both were acting for their respective principals, and in transacting business for them within the scope of their employment and authority. The plaintiff came into the actual possession of the policy in May, 1907. She then saw and examined it. She then saw all the documents, and all the writings that the defendant had, or that it saw. She had the original documents; the defendant copies. We cannot see wherein the defendant had better means, or was afforded better opportunity, to discover the mistake than was had by, or was afforded, the plaintiff. We think the conclusions of the trial court were not justified by the findings.

2

However, as we view the case, the questions presented with respect to the alleged reformation and of an estoppel are not the controlling features. The plaintiff declared upon a policy alleged to have been made for a period of one year from the 25th day of September, 1906, to the 25th day of September, 1907, and alleged to have been modified in October, 1906, by reducing the amount of the insurance and extending the period of insurance to September, 1909, and alleging that the policy was in full force and effect when the fire occurred in November, 1907. The defendant in its answer denied that the period of insurance had been extended, and that the policy was in force at the time of the fire. To entitle the plaintiff to recover, clearly the burden was upon her to establish the allegations thus denied by the defendant. She ought to prove them by the production of the policy itself, together with the slips attached thereto. The policy, when so considered, does not show that the period of insurance was extended to September, 1909. Such is not the legal effect of the policy when the slip is considered in connection with the whole of the policy. The statement made on the slip "insurance under this policy is hereby reduced to two thousand, five hundred dollars, premium reduced to thirty-four dollars and seventy-five cents," well shows a modification of the policy in such particulars. The

3

other indorsements or writings made on the margin of the slip, "extra premium $Nil, return premium $6.95, am❜t of policy $3,000, date of expiration Sept. 25/1909," are mere words and figures descriptive of the policy, and not words or language in modification of it. Appropriate words and language were used in the slip showing a modification of the policy with respect to the amount of the insurance and the premium. No such words or language is used with respect to an extension or modification of the term or period of insurance. Had the date of expiration been written on the margin "September, 1906," it is very clear that such mere descriptive words would have to give way to the terms or period of insurance as expressed in the body of the policy. And for the same reason the descriptive words, "Sept. 25/1909," must likewise give way to the term or period of insurance as expressed in the body of the policy. Taking the whole policy together, including the pink slip atached to it, it is apparent on the face of it that the insertion on the slip as to the time of the expiration of the policy was a clerical error relating only to a description of the policy, and not to its substance, which other parts of the policy afford means of correcting. The plaintiff, of course, cannot be heard to say that she acted or relied upon a meaning or interpretation given by herself to the pink slip which is not justified or authorized by the language there employed, or to the policy, which it when considered as a whole will not bear. We think the policy, taking it all together, does not show that the term or period of insurance was extended from September, 1907, to September, 1909, and that the defendant's motion for a direction of a verdict in its favor ought to have been granted, and that the court erred in directing a verdict for the plaintiff.

The findings made by the court below, the judgment entered upon them, and the judgment entered upon the verdict are therefore vacated and the case remanded for a new trial, costs to appellant.

FRICK, C. J., and MCCARTY, J., concur.