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with Brand and Arnoult, and the conversations about the policy, but in no instance does he remember that the amount of the concurrent insurance was mentioned. Are we not justified in believing confidently that Mr. Gottschalk is mistaken? Brand's firm had been employed for the express purpose of securing $60,000 of insurance. It had to be secured in small sums from a large number of companies-from 20, as the result showed. He had 200 or 250 forms printed. These forms were distributed among the various insurance agents in New Orleans. They were furnished to be used on the policies making up the $60,000. Nineteen of the forms certainly reached the several offices, for they were used on 19 policies. Brand says that he sent the forms, and Arnoult says that he carried them to Pescud's office, where Gottschalk was in charge. Brand and Arnoult say that on several occasions they told him that the insurance sought was $60,000. Can we believe it to be true that, with all these opportunities, the complainants' agents failed to let Gottschalk know they were seeking $60,000, and not $45,000, insurance on the property? We are convinced by the evidence that he was informed as to Brand's purpose to secure for the complainants $60,000 of insurance. We do not think that, with knowledge of that fact, Gottschalk would have intentionally used the old form, limiting the insurance to $15,000, and no such charge is made; nor do we think that he would have collected the premium on the policy, knowing it to be void. We believe his memory is in fault. We find the evidence clear and convincing that the old form was attached to the policy by the mistake of the defendant company's agent. Considering all the witnesses as equally credible, we are constrained to reach this conclusion from the weight of the evidence on the question in dispute, and by many facts and circumstances about which there is no dispute.

It remains to apply the law to the foregoing facts and conclusions. It is unquestionably the rule that, to entitle the complainants to relief, the evidence must be clear, unequivocal, and convincing. United States v. Budd, 144 U. S. 154, 12 Sup. Ct. 575, 36 L. Ed. 384. We find the evidence fills the measure of this rule, for it leaves in our minds no substantial doubt that a mutual mistake has occurred.

It is urged that the negligence of the complainants in failing to read the contract of insurance is such that they should be deprived of the right to relief. And in that connection our attention is called to the indorsement on the back of the policy: "It is important that the written portions of all policies covering the same property read exactly alike. If they do not they should be made uniform at once." This language would not necessarily call attention to the printed rider or form attached to the policy. The policy was written by an agent having authority from the defendant company to write it. The complainants' agents had informed the defendant's agent that insurance to the amount of $60,000 was desired and applied for, and printed forms to that effect were furnished him. The complainants' agents would naturally expect the defendant's agent to use the form furnished, and not to use an old and discarded form, that would, under the circumstances, make the policy void. While not directly in point, the ob

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servations of Mr. Justice Miller in Williams v. North German Ins. Co. (C. C.) 24 Fed. 625, 626, are pertinent:

"Where an instrument fails to represent what both parties intended to have it represent, and one party had drawn up the instrument, and the other party merely accepted it, and the fault was on the party drawing up the instrument, it can be reformed. It would be a harsh rule if a person applying to an insurance agent, who is supposed to know the legal value of the language used in such policies, which he is drawing up every day, and who is supposed to know exactly what is desired-if that agent fails to do that which was intended, it would be harsh to say that the instrument shall not be reformed, and that chancery shall not give relief."

Moreover, there are facts peculiar to this case tending to answer the contention that the complainants were negligent in failing to discover the mistake before the fire. To obtain the amount of insurance they sought, they received 20 different policies in 20 different companies. If ordinary care required them to read one, it required them to read all. They were all on standard forms. Each of them had pasted on it a printed form headed, "Ashton Sugar House," containing a description of the property insured, a statement of the amount of concurrent insurance allowed, and other matters. The entire policy contained, in all, about 4,000 words; and the twenty policies, about 80,000 words. Would it not be too stringent to hold that the complainants were guilty of culpable negligence in failing to read these policies? The ordinarily careful business man would probably have only looked at them to see that all were properly signed, and that the forms descriptive of the property were attached. The evidence shows that some such examination was made, but the difference in appearance between the old and new forms being slight, the fact that an old form had been pasted on 1 out of the 20 policies was not discovered. It has been held, even where the case was not complicated by the submission of a number of policies, that "a plaintiff is not, by neglecting to read his policy, guilty of such laches as to bar him from seeking to have the policy reformed to agree with the contract he made." 2 May on Insurance (4th Ed.) § 566, p. 1334. Fitchner v. Fidelity Mutual Fire Association, 103 Iowa, 276, 72 N. W. 530; Barnes v. Hekla Fire Ins. Co., 75 Iowa, 11, 39 N. W. 122, 9 Am. St. Rep. 450; Palmer v. Hartford Ins. Co., 54 Conn. 488, 9 Atl. 248. The highest possible care is not demanded. The complainants were not guilty of such negligence, in our opinion, as deprives them of the right to have the contract reformed. See 2 Pomeroy, Eq. Jur. (2d Ed.) § 856.

There are other facts and circumstances in the case which we have considered, but it is impracticable to comment on all of them without making the opinion longer than the transcript.

No universal rule has been formulated in text-book or opinion to show in all cases when contracts may or may not be reformed. We examine and decide this case only in the light of its own inherent facts. We have been caused to hesitate only by the fact that the able and careful trial judge reached a different conclusion. The evidence, however, is so convincing that we are constrained to dissent from his view.

The decree of the Circuit Court must be reversed, and the cause remanded, with instructions to enter a decree for the complainants.

EMPIRE STATE-IDAHO MINING & DEVELOPING CO. et al. v. HANLEY. (Circuit Court of Appeals, Ninth Circuit. February 6, 1905.)

No. 1,083.

1. PRIOR APPEAL-LAW OF THE CASE-Mandate.

Where, on a prior appeal, it was held that defendant had excluded plaintiff from a mining property at least until 1901, such holding constituted the law of the case on a subsequent hearing with reference to damages sustained, though it was not contained in the mandate issued to the trial court.

2. SAME-FINDINGS EVIDENCE.

On a hearing to determine damages for defendants wrongfully keeping plaintiff from possession of a mine, evidence held to justify a finding that such dispossession extended to January 1, 1902.

3. SAME-SUPERSEDEAS BOND-SUMMARY JUDGMENT AGAINST SURETIES.

Where, after affirmance on appeal, appellee filed in the trial court a motion to proceed containing a notice to the sureties on appellant's supersedeas bond that he would apply for a summary decree on the bond, service of which motion was admitted by the surety, such surety was a quasi party to the proceeding, and the court was authorized to render summary judgment against it, both under the state law (Ann. Code Idaho 1901, § 3576), providing that judgment may be entered on motion against the sureties by the court from which the appeal is taken, pursuant to the stipulations, and independent thereof.

Appeal from the Circuit Court of the United States for the Northern Division of the District of Idaho.

Geo. Turner, F. T. Post, and W. B. Heyburn, for appellants.
M. A. Folsom, for appellee.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT, Circuit Judge. On November 9, 1903, this court rendered a decree in the above-entitled cause, remanding the same to the court below with directions to modify its final decree in certain respects specified, and directing it to take, if necessary, further proof as to the time when the defendants to the suit, the appellants herein, ceased to exclude the appellee from the mine in question, "and gave or offered to him or his representatives free access thereto and free inspection. thereof." In accordance with that decree, the cause was remanded to the Circuit Court. That court appointed a special examiner to take such testimony upon the question so suggested, and return the same to the court together with his opinion thereon, his opinion to be advisory only. Testimony was accordingly taken. Thereupon a motion and petition were served and filed by the appellee for judgment against the Empire State-Idaho Mining & Developing Company and the surety upon its supersedeas bond, the American Bonding Company. The surety entered a special appearance, and objected to the rendition of a judgment against it upon the ground that it had never been served with any process or rule or order of the court, and had not had its day in court, and that the court was without jurisdiction to render a judgment against it. The Circuit Court found from the evidence that the appellee was excluded from the mine up to January 1, 1902, and that thereafter he was not excluded, and it accordingly entered a decree

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against the mining company for $260,672.43 and a decree against the American Bonding Company for $170,343.60, the amount of the decree from which the former appeal was taken.

The assignments of error present some questions which have already been adjudicated by this court, and which will therefore not be here reconsidered. The questions that are new are, first, did the trial court err in holding that the appellee was excluded from the mining property up to January 1, 1902? and, second, was that court without jurisdiction to render a judgment against the American Bonding Company? As to the exclusion of the appellee from the mining property, the appellants contend that he was not in fact excluded therefrom at any time, but that, if there were at any time theoretical exclusion, it ceased on May 6, 1901. The date so mentioned is the date of the decree of this court in the case of Hanley v. Sweeny, 109 Fed. 712, 48 C. C. A. 612, in which it was held that the appellee herein was the owner of an undivided one-eighth of the Skookum Mine, and that his conveyance of that interest had been fraudulently obtained by the opposing parties in that suit. The present suit was brought by the appellee herein to obtain an injunction against the further operation of the mine by the appellant the Empire State-Idaho Mining & Developing Company and to obtain an accounting of the antecedent working of the ground by said appellant. Upon the appeal from the decree of the Circuit Court this court, in Sweeney v. Hanley, 126 Fed. 102, 61 C. C. A. 153, said: "The case shows that from the beginning of the mining of the ore in controversy to at least the time of the decision of this court on May 6, 1901, in the case of Hanley v. Sweeny et al., 109 Fed. 712, 48 C. C. A. 612, the defendants to the suit claimed Hanley's interest in the mine in question by virtue of the deed here adjudged never to have been delivered, but to have been fraudulently gotten possession of by Sweeny and Clark, during all of which period they unlawfully and fraudulently excluded Hanley from the mine;" and this court in its opinion further said that the decree of the Circuit Court "must be so modified as to award the complainant, Hanley, judgment. for one-eighth of the gross value at the mine of all ore extracted by the Empire State-Idaho Mining & Developing Company therefrom up to the time the defendants to the suit ceased to exclude him from the mine, and to give him or his representatives free access thereto and inspection thereof, and thereafter for one-eighth of the net value of all ore so mined by the defendant company from the mine or mining claim in question, together with legal interest," etc. It thus appears that it is settled by the adjudication of this court that the exclusion of the appellee from the mine continued at least until May 6, 1901. The fact that the views of the court so expressed in the opinion are not contained in the mandate which issued to the lower court renders them no less conclusive as the law of the case. Thompson v. Maxwell, 168 U. S. 451, 18 Sup. Ct. 121, 42 L. Ed. 539.

The trial court found that the exclusion of the appellee continued until January 1, 1902. That date was fixed as the date of the termination of the exclusion for the reason that it was shown that at that time a limited permission, through an order of the court, was given to the ap

pellee's engineers and his watchman to enter the mining ground. The evidence that the exclusion continued until that date consists in the following facts: The decree of this court of May 6, 1901, was not complied with by the appellees in that suit. They filed in this court a petition for rehearing, in which they reasserted their denial of Hanley's right to the property or to relief in equity. After the denial of that petition they made an application to the Supreme Court for a writ of certiorari to review the judgment of this court. That application was pending until January 13, 1902. In December, 1901, the appellee herein presented an application to the Circuit Court for an injunction and an order of reference, supported by his affidavit, in which he deposed that the defendant company had constantly refused to permit him to enter the underground workings of said property for the purpose of working said property or inspecting the same, and that it had excluded him from entering said property for any purpose whatever. The Empire State-Idaho Mining & Developing Company, in opposition to the motion and application, replied to that affidavit, but did not deny the alleged fact of the exclusion of the appellee. Upon the hearing on that motion and application counsel for said mining company, in the presence of the general manager and other officers thereof, vigorously objected to an order of the court permitting the appellee to enter the mine, upon the ground that he had no right therein. Later, when the appellee presented to the Circuit Court his petition in said case for the appointment of a receiver and an injunction, together with his affidavit in support thereof, the resident manager of the mining company on February 6, 1902, presented his counter affidavit in opposition thereto, in which he admitted that said mining company "and its officers and agents have refused to permit the said Hanley to enter its underground workings; that it has no underground workings in which the said Hanley has any interest, or into which he is entitled to enter; deny that the said Hanley, for the purpose of working the said Skookum mine, or inspecting the same, or for any purpose, has any right to enter therein through any workings of the respondent corporation; admit that the respondent corporation has claimed exclusive title and right of possession to its said workings, and has excluded plaintiff from entering therein for any purpose whatever; deny that the said plaintiff has any right to enter into or within the workings of the corporation defendant, except by virtue of such orders as the court may make authorizing him to enter such workings for the purpose specified in said order; denies that any order has been made by said court authorizing said Hanley to enter within the workings for any purpose; and admit that on the 23d day of January, 1901, the corporation defendant did forbid the said Hanley entering into the said workings." Against the force of these admissions of the affidavit, counsel for the appellants contend that the mining company was not seeking to obtain any relief based upon that paper. They admit that the appellee had in his affidavit alleged his exclusion from the mine as one of the reasons why he was entitled to an injunction and the appointment of a receiver, and that the counter affidavit is possibly an admission of that statement in a qualified way for the purpose of that hearing; but they argue that,

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