srsmu v. norm Mor. ms. co. 19
which he has an inte1·est adverse to his principal. The law, dealing
with the average integrity and disinterestedness, wisely assumes that
no man can faithfully serve two masters, whose interests are in con-
flict. Story, Ag. §§ 9, 10, 210, 211; 4 Kent, 438. ,
Assuming, then, that the Lurches were acting for themselves and
not the defendant, because as a matter of fact it appears they were
so acting, and because, as a matter of law, they could not act other-
wise, what possible ground is there for the claim that this policy
does not truly state the contract of the parties? None whatever.
The Lurches applied in writing to have this property insured as
that of the plaintiff, and the defendant knowing nothing to the con-
trary, accepted the application and issued the policy accordingly.
The minds of the parties met on this proposition and no other. But
it was essentially false; and as soon as the defendant ascertained
that the Lurches had misrepresented the matter and attempted to
procure an insurance on their own property, substantially for their
own benefit, in the name of Spare, it refused to be bound by the con-
tract, as it had a right to, both under the general law and the ex-
press stipulation of the policy, and offered to return the premium.
A party seeking to have a mistake in a written instrument cor-
rected must show exactly in what the mistake consists. It must be
a mutual mistake whereby both parties have, in fact, done what nei-
ther intended. And the evidence must be sufficient to prove this
satisfactorily-to a moral certainty. Brugger v. State Ins. Oo. 5 Sawy.
310. There was no mutual mistake here. There was, indeed, in the
proper sense of the term, no mistake at all. . The defendant was de-
ceived by the deliberate misrepresentation of the Lurches as to the
ownership of this property, whereby, according to the testimony of
its manager, it was misled to accept a greater moral hazard than it
was aware of or otherwise might have done. For this reason the de· ·
fendant had a right to rescind the contract or treat it as null, inde-
pendent of the clause in the policy making it void on that account. A
There is still another point made by the plaintiif, and that is a
subsequent waiverof the misrepresentation by the defendant. The
Lurches testify that during the year 1881, and after this policy was
issued, Bush was at Cottage Grove, and inlconversation with them
learned that the warehouse was not the property of Spare, but of the .
Lurches, whereupon he called their attention torthe irregularity, but
said, as they were the agents of the defendant, it might stand so
until the next year, when_ it must be corrected. , The time,.circum· ‘
stances, and details of this alleged conversation are very vaguely and
conflicting1y stated by the Lurches, while the whole story is flatly
and explicitly contradicted by Bush, who also swears positively that
he was was not at Cottage Grove from March 11, 1881, to February
16, 1882. Without stopping to consider the legal effect of such a
conversation or understanding, or the power or authority of Bush to
thus validatea void contract,_i·t is sufficient to say that the burden