SPARE v. Home Mor. ms. 00. 15r
suit in equity to reform the policy, alleging that by mistake it was issued in
the 'name of the creditor, as owner, when it should have been issued in the
name of the debtor and for his benefit, in case of loss, held, that the evidence
did not support the allegation of mistake, but, on the contrary, showed that
the company was induced to issue the policy by the false representation of the
owners and applicant, on account of which deception it was entitled to rescind
the contract or treat it as null. r
Suit to Correct a Mistake in at Policy of Insurance. ‘
W. Scott Bebec and W. Cullen Gaston, for plaintiff.
Cyrus A. Dolph, for defendant. V
Dmmz, J. This suit was commenced on April 28, 1883. It is
brought by the plaintiff, acitizen of Oregon, against the defendant,acor-
poration formed under the law of California and doing business in this
state, to reform and enforce a policy of insurance against fire, issued
by the defendant on a warehouse in Cottage Grove, Oregon, for a pe-
riod of one year from July 26, 1881, in the sum of $900, by correcting
an alleged mistake therein, whereby said property appears tohave
been insured as the property of the plaintiff, when in fact it was agreed
and understood that it should be insured as the property of Aaron
and Ben Lurch, whose property it was and is, for the benefit of the
plaintiff. The answer of the defendant denies the allegations of the
bill, as to the alleged mistake, and avers that Lurch Bros. applied to
it, as the agents of the defendant, to have the property insured as
that of the plaintiff, and that it never was otherwise informed until
after the loss and readjustment, when it refused to pay the same and
offered to return the premium of $18.90, which was refused. The
answer also contains a plea of limitation to the effect that the suit is
barred by the stipulation in the policy, which provides that no suit
shall be maintained thereon unless commenced within 12 months
after the loss occurs. On August 13th this cause was before this
court on ademurrer to the bill, when it was held that the stipulation
in the policy limiting the right to sue thereon to the 12 months next
after the loss did not commence to operate until the expiration of
the 60 days thereby given to the insurer in which to make payment.
  FED. REP. 568. ’* ·
But now it is contended bythe defendant that because it gave no-
tice of its intention not to pay and the reason therefor, before the
expiration of the 60 days, that the plaintiff waslat liberty to com-I
rnence his suit at once, and _therefore the period of ·1·2 months com·
menced to run from that time and expired more than a month before
the commencement of this suit, namely, March 23, 1883. This is a ’
plausible proposition, but I do not think it a sound one. The stipus
lation for a delay of 60 days after notice and proof of loss within
which to make payment, being intended for the benefit of the defend~
ant, doubtless it might waive it. And by giving notice on March 23d ,
that it would not pay the loss, forthe reason stated, it evidently did
so. Thereafter the plaintiff may have been at liberty to ·sue without
furtherdelay. A But I doubt if the defendant could by thisnieans