In disposing of these causes, I am unable to agree with the conclusions reached in the foregoing opinion for the following reasons. In a bill in equity, brought to accomplish the reformation of a written instrument because of mutual mistake, and where no fraud is involved, it is well settled that the complainant to secure a decree in his favor must prove that the instrument as existing does not express the real intent and purpose of both parties, and that the mistake which brought about this result was mutual. It must also appear that the minds of the parties had already met in a definite agreement or understanding, but that, in having it put into final written form, both did what neither intended. Further, the burden is on the complainant to establish these matters by clear, convincing and unequivocal proof. In reforming a written instrument, the court is exercising one of its highest equity powers, and the obvious reason for the strictness of these holdings is that the court will not undertake to make by reformation an agreement which one of the parties did not intend.
These general principles were early recognized by this court. In Diman v. The Providence, Warren Bristol R.R. Co.,5 R.I. 130, in dismissing a bill to reform a stock subscription, the court said: "A court of equity has no power to alter or reform an agreement made between parties, since this would be in truth a power to contract for them; but merely to correct the writing executed as evidence of the agreement, so as to make it express what the parties actually agreed to. It follows, that the mistake which it may correct in such a writing must be, as it is usually expressed, the mistake of both parties to it; that is, such a mistake in the draughting of the writing, as makes it convey the intent or meaning of neither party to the contract. If the court were to reform the writing to make it accord *Page 30 with the intent of one party only to the agreement, who averred and proved that he signed it, as it was written, by mistake, when it exactly expressed the agreement as understood by the other party, the writing, when so altered, would be just as far from expressing the agreement of the parties as it was before; and the court would have been engaged in the singular office, for a court of equity, of doing right to one party, at the expense of a precisely equal wrong to the other."
In discussing the question of proof, this court in Allen v.Brown, 6 R.I. 386, a bill brought to reform the grant of a seaweed privilege, used the following language at page 397: "Accordingly, in this country, as well as in England, although evidence inferior in its general nature is received for the purpose of correcting an undesigned variance between the real and the written contract, the courts refuse relief unless in cases clearly and unequivocally proved to require it; and hold, that it would be at least exceedingly difficult to prove the mistake, if the answer denied it, and there was nothing to rely upon but the recollection of witnesses." To the same general effect areCranston Print Works v. Dyer, 19 R.I. 208; Fehlberg v.Cosine, 16 R.I. 162.
In other jurisdictions the same rules of law are applied.Mead v. Westchester Fire Ins. Co., 64 N.Y. 453; Back v.People's Nat. Fire Ins. Co., 97 Conn. 336; Spexarth v. RhodeIsland Ins. Co., 245 Pac. (Or.) 515; Kanofsky v.Woerderhoff, 211 Ia. 1175; Hearne v. Marine Ins. Co., 20 Wall. 488; Snell v. Insurance Co., 98 U.S. 85; PhilippineSugar Estates v. Philippine Islands, 247 U.S. 385.
In the above cases the evidence presented was considered, and where, in the judgment of the court, it showed clearly and convincingly a meeting of the minds of the parties, but by mutual mistake failure to fully and properly express in the writing the agreement reached, then relief by way of reformation was granted, otherwise it was denied.
In the instant causes, the trial justice determined that the "weight of the evidence" supported a finding that there *Page 31 had been a mutual mistake in designating, in the two policies in question, the complainant's interest in the burned property as that of owner, when it should have been that of mortgagee. He made no definite finding on the issue of whether or not the parties had come to an agreement that policies should be issued, describing the Cantones as owners, and the complainant as mortgagee, of the property insured; and such a finding must be inferred, if it can be, from the holding that there had been a mutual mistake. This situation makes it necessary for us to determine this question from the testimony introduced.
Further, while ordinarily the finding of a trial justice on a question of fact is entitled to great weight, by reason of his having seen and heard the witnesses, and will not be disturbed by this court unless clearly wrong, in the causes at bar this general principle can not be applied because of doubt and uncertainty as to whether he made use of the proper rule in weighing the evidence in these bills in equity for reformation of written instruments. As we have indicated, it is required, in causes such as these, that the complainant sustain the burden of proof by clear and convincing or clear and unequivocal evidence. In the present causes, it is at least very doubtful whether the trial justice applied this test in weighing the evidence. In fact, in my judgment, the indications are that he did not. It is contended that his use of the phrases, "positive testimony" and "negative testimony," in characterizing the evidence of the complainant's witness and of the respondents' witness respectively, can be given that meaning. To my mind, this conclusion does not follow. In this situation, the findings of fact by the trial justice herein can not be given their usual weight, and this court should consider and weigh the evidence.
The opinion of Mr. Justice CONDON refers in some detail to the vital testimony in these causes, and repetition is unnecessary. This evidence, which is conflicting, is furnished by the complainant's agent, who gave the order for *Page 32 the insurance, and by the insurance agent who received the order. The latter testified that the order was given her verbally only, and that she immediately wrote it as given in the order book. This entry lists the complainant as the owner of the property, and not as mortgagee. The complainant's claim herein rests to a large degree on the alleged showing by her agent to the insurance agent, at the time the order was given, of a certain paper, said to contain the names of the owners of the property and that of the complainant as mortgagee. While portions of the testimony of the insurance agent were based on her general practice and custom in taking orders for insurance, rather than on direct recollection of this particular order, nevertheless she was positive as to the fact that she saw no such paper, did not copy from one into her order book, and received nothing of such a nature from the complainant's agent. As to this alleged memorandum, the latter testified he did not know what became of it after the order was given.
There is, also, evidence that about seven months prior to the placing of the order involved herein, two insurance companies, one of which is a respondent in these present proceedings, ordered cancelled, through the same office in which the order before us was placed, policies on the same property, made out in the name of the same owners, and with the complainant designated as mortgagee. No testimony was introduced showing any change of circumstance between the date of cancellation and that of the new order. This evidence bears on the probability of the insurance agent, with knowledge of this previous action on the part of the insurance companies, agreeing with the complainant's agent that the new policies should issue in exactly the same form as those which had been cancelled at the request of the companies; and there is no direct evidence that she did so agree. The respondents' contention seems reasonable, that the agent taking the order did what she was requested to do and what she intended to do, namely, have the new policies issued in the name of the complainant as owner and not as mortgagee. *Page 33
Even if the testimony of the complainant's agent be accepted as accurate, the most reasonable conclusion from all the evidence on the subject seems to be that the insurance agent did not agree to have policies issued in the form applied for. When she entered in the order book the order for insurance to be issued to the complainant as owner, she did so in the belief, however mistaken it may have been, that the complainant's agent had so ordered. Later, when the firm of which she was a member selected the respondent companies to be the insurers, and designated the amount of the risk each was to assume, the respondents then first came into the matter. At that time, the firm understood that the complainant had asked for insurance as owner of the property to be insured. If so, it can not be found that either of the respondents ever agreed, or even understood, that a policy was to be issued in which the Cantones were to be described as owners and the complainant as mortgagee. Therefore the complainant and the respondents had very different ideas of what sort of policies should be issued, and there was never any meeting of minds, and no mutual mistake occurred when the policies were issued and accepted.
Upon a consideration of all the testimony, I am of the opinion that the complainant has failed to show clearly, convincingly and unequivocally that there was a mutual mistake, or that the minds of the parties had met in a definite agreement regarding the insurance, to which the present policies should be made to conform. In my judgment, therefore, the complainant is not entitled to any relief by way of reformation.
In Travelers' Ins. Co. v. Henderson, 69 F. 762, the court dismissed an action brought to reform a policy of accident insurance, the issue being whether the policy should have contained a provision covering death by an intentional act, and in so doing used the following language which seems pertinent to the situation as disclosed by the evidence in the present causes: "The rule referred to is so well settled *Page 34 that it may be safely asserted that a court of equity has no right to correct an alleged mistake in a written agreement, on the strength of testimony purely oral, if the testimony is to such extent uncertain, equivocal, or contradictory as to leave the fact of mistake open to doubt. Moreover, a court of equity ought to be especially cautious in altering the provisions of a written contract where it has been in force for a considerable period before an attempt is made to reform it, and the parties thereto have in the meantime had ample opportunity to become acquainted with its provisions, and an event has also occurred which renders a change in the terms of the contract of vital importance to the person who is seeking to reform the instrument."
MOSS, J., concurs in the opinion of BAKER, J.