Levi Woodbury

“ And when they reduce them to writing, why do it by letter, embracing only the heads, instead of entering into special agreements? we all know, in practice, how these things are done. And perhaps persons dealing with insurance companies are as often as in any other cases inattentive to those niceties and particularities.
To rebut the evidence of Wheeler, much reliance is placed on the testimony of Greene, that no such letter can be found in the Washington Office, no memorandum of it on the minutes or elsewhere, and no entry of its having been laid before the board, as usual in such cases. ”

“ I say counter proof, because, unlike the bill to reform a written agreement, there are no counter presumptions. Giving notice is an act in pais. The law neither presumes that it was or was not given.
Many a poor wretch has swung upon the gallows without half the evidence that we have presented. Many and many a conviction has been had, directly against the legal presumption of innocence, upon evidence not half as precise and direct, nor proceeding from men of half the character and intelligence. ”

“ The first step in proving a fraud fails. Neither a neglect nor wrong is shown by the positive testimony of any one witness; and whatever is sworn to by any one in behalf of the complainant is counteracted by opposing circumstances, rather than strengthened, as it should be, after a sworn denial in the bill, and in so grave a charge as fraud, by very satisfactory auxiliaries, though not perhaps by so strong evidence as is necessary in reforming contracts ”

“ The fact that the secretary of one insurance company borrowed of another a representation would make no impression upon the mind of the secretary or president of the other, even if the motive was stated, because they rely upon notice being given them if the policy should be executed, and have no right to act upon any thing less. Mr. Greene has been under examination as a witness, and if the plaintiff thought he knew or suspected any thing with regard to the policy at the American Office, it was in his power to have inquired of him. ”

“ Every case cited by the author in relation to insurance were attempts to alter the original policy. Every bill to reform a written instrument or contract is a bill to alter the contract. But the present is more like a bill for the specific execution of a contract. It goes not behind, but in front of, the contract. It requires a party to fulfil what he agreed to fulfil in this very contract. The company agreed that, upon receiving notice of any other insurance, they would assent or dissent. ”

“ He was not much older than the learned counsel himself, and as competent to do business as he ever was in his life. He was careful at this very time to make the proper indorsement of the sale from Wheeler to Carpenter, a matter of no importance compared with the notice of a subsequent insurance. Had Mr. Jackson been living in September, 1838, when the policy sued on was executed, the learned counsel thinks some entry would have been made. Such a presumption is entirely gratuitous. ”

“ It is difficult, likewise, to discover any adequate motive for not replying to the letter, if it was ever received, unless it be one resting on a gross fraud. If the company, or its president, on a receipt of it, should not choose to continue the policy, as would probably be the case, for reasons before mentioned, they would feel no reluctance to state the fact to the insured, and thus end a risk where the insurance exceeded the value of the property, and differed so much from their usual prudent terms of underwriting. ”

“ Jackson, and his statement that he did so is founded entirely upon his practice to do so in like cases. The whole strength of the evidence, then, consists in the presumption derived from Mr. Peck's usual habits of business in this particular. The thing which he was requested to do was no part of his official duty. It was a matter of favor to Wheeler, to be done in a manner most convenient to himself. It would rest, therefore, entirely in his own caprice, whether he would make a verbal communication to Mr. Jackson, or whether he would hand him the letter. ”

“ In point of fact, therefore, if Thornton had specifically stated to Mr. Jackson the purpose for which he called to examine the representation at the Washington Office, it would give Mr. Jackson no reason to believe that the American Company would make any further insurance upon the property, and in fact they did refuse to make any further insurance upon that representation. Besides, it would not be notice, being to a different intent and for a different purpose, that is, to obtain information and nothing more. ”

“ This evidence, therefore, must be certain and permanent, as the other parts of the policy, and not left to depend upon uncertain recollection, or liable to be affected by motives of interest or bias. In the next place, it is indispensably necessary to protect against fraud, being the only security against excessive insurance, often made with fraudulent intention, and always a temptation to fraud. ”

“ The insured are required by the terms of the policy to notify the company of all sales of the property insured, and the assent of the insurance company is necessary in order to cover the property for the new owner. ”

“ Dorr, who was elected in May, 1838, to state that neither he nor the company ever knew or suspected the existence of these American policies until long after September, 1838, how much more important was it to them that the secretary never suspected their existence at a long anterior period; the man whose ignorance of their existence would have established a most formidable presumption against the plaintiff. ”

“ It is like all other liabilities depending upon notice,-the liability of an indorser or other surety in special cases,-like all other liabilities, throughout the whole range of human transactions, which are dependent upon the happening of some contingency. When the ordinary evidence is given and not contradicted, the evidence which is usually given of such contingency, the liability becomes fixed, unless that proof is opposed by counter proof. ”

“ By the depositions of Strong, Phillips, Reading, and Laight, it appears, 1st, that notices are usually verbal; 2d, that it is considered the duty of the office either to reject the proposition and cancel the policy, or to make the indorsement on the books of the company or on the policy; 3d, that it is not the practice in New York to require notice of a renewal. ”

“ The reason why Wheeler did not preserve a copy of the letter is sufficiently accounted for.
It is asked why Wheeler did not write again to Jackson, when he received no reply to his letter, and why he did not speak about it to Jackson the next time he saw him. In reply I might ask, Why do merchants and others, when dealing with those in whom they repose confidence, omit to have contracts reduced to writing, when required by the statute of frauds? ”

“ And if the said insured, or their assigns, shall hereafter make any other insurance on the same property, and shall not, with all reasonable diligence, give notice thereof to this corporation, and have the same indorsed on this instrument, or otherwise acknowledged by them in writing, this policy shall cease and be of no further effect.' A loss having occurred on the 9th of April, 1839, an action at law was instituted to recover the amount of the defendants, on which final judgment was rendered in their favor in this court, at the January term, 1841. ”

“ In that view, both the receipt of the information, and a consequent obligation to make an acknowledgment of it in writing, must be satisfactorily established before any neglect of duty can be imputed. ”