ON MOTION FOR REHEARING. The defendant in its motion for rehearing presents that this court has overlooked controlling cases, cited and not cited, also, that we have failed to consider the statutes as to discriminating between its insured.
While the case at bar was tried by the court without a jury and the duty of this court is to sustain the trial court, if for any reason shown in the record the trial court should be sustained, still as the defendant in its motion for a rehearing has cited cases which had been overlooked and not cited by it before submission and as these cases might appear in conflict, if not distinguished, we therefore deem it but fair to the defendant to hand down this opinion on motion for rehearing.
Let us here observe that counsel cannot always presume from an appellate court's opinion that the court has overlooked authority which is cited merely upon the fact that all cases cited are not taken up and commented upon. If appellate courts be required to comment upon and make distinguishments as to all cases cited in briefs, it would result in the handing down of digests and not judicial opinions. The urge to long and argumentative opinions is strong enough without the urge of counsel for detailed opinions.
It is presented that this court has overlooked the opinion in New York Life Insurance Co. v. Gilbert, 215 Mo. App. 201.
In the above case the insured had written requesting the computation of the amount of paid up policy he was entitled to under the contract; the company made a mistake and computed the amount as $768 when the right computation was $296; and the insured instructed the company to place same on paid up basis and the amount of $768 was indorsed thereon. In less than a month the mistake was *Page 365 discovered and the insured notified and request for correction made. The insured contended for the amount indorsed upon the theory that he would not have made the change if the amount of $296 had been indorsed. Later the insurance company brought its action to correct the mistake.
Judge BLAND of this court wrote the opinion in the above case. In the course of the opinion it is observed that, at the time the mistake was discovered and request for correction made, the same could have been corrected without injury to the insured or the beneficiary or anyone else concerned. This court declared the mistake as mutual on the express grounds stated in the opinion, to-wit: That the insured had not asked for more than he was entitled to on the policy and that the mistake was mutual in that the insured mistakenly supposed that the amount indorsed on the policy was correct.
Defendant cites in support of its motion, Berry v. Continental Life Insurance Company of Missouri, 33 S.W.2d 1016.
In the Berry case the court held the mistake mutual in that the mistaken amount appearing at one place in the policy was in conflict with what the insured was entitled to under the provisions of the contract and that by the correction the company was willing to pay all that he was entitled to under the contract.
In the cases cited by the defendant, it appears that the mistakes were held to be mutual in that when the mistakes were corrected the insured received all he was entitled to in the contract as it was written. In other words, the clerical errors or errors of computation were out of harmony with the contract involved.
In the case at bar the policy had been issued and offered to the plaintiff, which he refused to accept for the reason that someone had informed him that some of the companies were issuing policies restricted as to full benefit. The plaintiff testified that he bought the policy with the intention of getting a one thousand dollar savings bond and further testified he thought he was getting a full guaranteed bond. While the defendant cites cases that are to the effect that plaintiff's thought was not controlling for the reason that the understanding of a witness can have no influence in determining the nature of a contract in respect to which he testifies. Elliott v. Sanderson, 16 Mo. 482, still it must be observed here, that the case at bar is distinguished from the above case in that the plaintiff's understanding of the contract he was testifying to and concerning conforms in every respect with the contract as it was issued and delivered to him. But, be that as it may, we conclude that the evidence on the part of plaintiff herein, when taken in connection with the evidence of defendant herein, even based solely upon the evidence transcribed in the original opinion herein, is sufficient to raise the issue of fact that defendant was in the market for full benefit policy with no graded schedule and that he would have refused any other kind. We further *Page 366 conclude, that plaintiff's mistaken idea as to former policy cannot be concluded against him as applying to the policy herein sued upon so as to constitute the mistake mutual as to the policy here in issue.
As to the application of Section 5729, Revised Statutes 1929, and Cravens v. Insurance Co., 148 Mo. 583, we hold that there is nothing in the statute or the opinion that precluded the defendant company from issuing full benefit contracts as well as graded schedule contracts. It must be observed that the contract as used in this case requires a rider to convert it into a graded schedule contract. We conclude that the record in this case does not disclose the contract sued upon as in conflict with the statute. While the conclusion can be drawn from the evidence that it was defendant's policy to place the rider on policies issued on the life of infants, there is nothing in the law requiring it to do so and if by mistake it fails in the exercise of its usual practice in that respect, it is beyond the power of this court to correct unless mutual mistake is shown.
Defendant urges that the mailing of letter to plaintiff calling attention to the mistake is conclusive on plaintiff and cites McFarland v. United States Mutual Accident Association,124 Mo. 204. The case cited holds that, the fact that a letter was mailed, duly addressed and stamped is evidence that it was received. The opinion, however, clearly presents that the evidence but goes to the issue of fact.
The evidence of and concerning the letter in the case at bar was before the court who was the trier of fact and by the finding of the fact by the court, we are bound. Such being the case, we deemed it unnecessary to reaffirm so prime a principle in the opinion handed down herein.
As is held in General Refractories Co. v. Howard et al.,44 S.W.2d 65, where parties have agreed to accomplish a particular object by instrument and that instrument when executed was insufficient to effectuate intention, then the mistake is mutual.
This court having concluded that the evidence in this case presents an issue of fact as to whether the minds of the contracting parties had met on the question as to whether a guaranteed schedule restricting the face mount of the policy should be attached, that it follows that the finding of the trial court having determined that issue of fact against defendant, we are bound thereby. We conclude, therefore, that the authorities cited in defendant's brief in the first instance and cited in motion for new trial on the question of mutuality of mistake do not apply to the facts in this case for the reasons above given.
The motion for rehearing is denied. All concur. *Page 367