Chamberlain v. Conn. Central R. R. Co. The case may well stand on this proposition, that if the possession and use of mortgaged premises by the owner of the mortgage debt without any agreement at all respecting the matter, imperatively demands an accounting and the application of rents and profits to the payment of the debt, the duty surely can be no less on the party who has agreed to do that very thing. Then, as to the point that the lease covers more property than the mortgage, it has much less truth than the first. The leasehold estate and the mortgage estate are substantially identical. The mortgage conveyed all lands, franchises, "materials, privileges, appurtenances and property, real and personal, which now belongs to or hereafter may be acquired by said company." The difficulty of conveying anything more than this by any subsequent lease is quite apparent without further argument. The color of a foundation which this point has to rest upon is the paragraph in the lease which reads "together with any right it" (the defendant) "has or may hereafter acquire to use in any manner" certain terminal facilities and connecting roads which are named. The language is that of a mere quit-claim; no rights are described as existing, and if they did exist the sweeping language of the mortgage would seem broad enough to include them. There may have been some remnant of a lease or license for the defendant to use the connecting roads referred to, but whatever may be the right referred to, it furnishes no obstacle at all to accounting, for the lease expressly provides for deducting from the gross earnings of the entire line operated solely on account of the Connecticut Central, whatever is paid on account of those connections and advantages, and there can be no uncertainty, on that account, in ascertaining the net income to be applied on the mortgage debt. It may be well here to add that the directions contained in the lease respecting the mode of ascertaining the amount, if any, to be applied on the mortgage, should be followed. Another objection attempted to be drawn from the lease is, that as it provides for arbitration in case of a difference. Chambe ain v. Conn. Central R. R. Co. between the parties, the defendant is restricted to that remedy alone. But the New York & New England Railroad Company, having caused this suit to be instituted for their sole benefit, is in no position to make such an objection if it was otherwise good, for having invoked the jurisdiction of a court of equity to pass upon their allegations, they cannot limit that jurisdiction till it has determined all the equities between the parties relative to the subject matter. Moreover, it seems to be well settled that an agreement to submit to arbitration will not be held valid, either in law or equity, when its effect is to oust the court of jurisdiction. Wood v. Humphrey, 114 Mass., 185; Tobey v. County of Bristol, 3 Story, 300; Thompson v. Chamock, 8 T. R., 139; Jones v. St. John's College, L. R., 6 Q. B., 115; Russell on Arbitration, 61-63, and cases there cited. Our reasoning has brought us to the conclusion that it is the duty of the New York & New England Railroad Company to account in this action, and that the defense founded upon the anticipated results of such accounting is one the defendant mortgagor should be allowed to make. The further objection, that the account demanded is in some of its details unreasonable, and that no railroad company's books contain such items, we do not deem it necessary to pass upon. There is nothing on record to show whether this point is well founded or not, and in the brief of counsel it is stated in the most general terms without argument. We think therefore it is better to leave the details to the trial court, that can act upon fuller information and argument. It is quite obvious that the details will depend much upon what the plaintiffs are willing to disclose. If they refuse or neglect to give, as the answer and cross-complaint allege, an account of the actual freight, tolls and income of the Connecticut Central Railroad Company, and insist on pro-rating all such items with what they receive for the same things upon the entire mileage of their own road, then many of the details asked for would become both reasonable and necessary. We observe near the conclusion of the cross-complaint and in one place in the answer Palmer v. Hartford Ins. Co. * * that the demand for special details referred to is subject to There was error in the judgment complained of, and a new trial is ordered. In this opinion the other judges concurred. FRANK L. PALMER & OTHERS vs. THE HARTFORD FIRE New London Co., Oct. T., 1886. PARK, C. J., CARPENTER, PARDEE, The plaintiffs had held a policy of insurance of the defendants upon a quantity of merchandise, and on the policy expiring applied to the defendants for a renewal policy to be on the same terms with the expiring one, which the defendants promised to give. The defendants wrote and delivered to them a new policy and received the premium. The plaintiffs, supposing it to be on the same terms with the first, did not examine it until after the loss of the property by fire three months later, when, on reading it, they discovered an important variance from the former policy, materially affecting their right of recovery. If they had known of the change they would not have accepted the policy. In a suit for the reformation of the policy and a recovery of what would become due under it, it was held that the plaintiffs could not be regarded as guilty of laches in not examining the policy and applying earlier for its correction, since they had a right to believe it to be in all essential respects like the former one. The defendants, having promised that the new policy should be on the same terms with the first one, were not in a position to charge the plaintiffs with neglect in not discovering that it was not so. Palmer v. Hartford Ins. Co. No written contract is beyond the reach of a court of equity for the purpose of reforming it, if the prayer for relief is presented in due season. There is of course a strong presumption in favor of the written agreement over a mere oral one by which it is sought to be corrected, and the prayer for relief in such a case must be supported by overwhelming evidence or be denied. [Argued January 13th-decided February 11th, 1887.] SUIT for the reformation of a policy of fire insurance and for the recovery of the amount due on the policy when reformed; brought to the Superior Court in New London County. The complaint alleged that prior to the 15th of May, 1884, the plaintiffs had insured certain goods in the office of the defendant, a fire insurance company in the city of Hartford, to the amount of $5,000, for one year, for a premium of $50, and that the policy was to expire on the 15th of May above mentioned; that the defendant proposed to the plaintiffs to renew the insurance on the same terms and conditions stated in the expiring policy, and issued a policy therefor for one year for the same premium, which proposition was accepted by the plaintiffs and the premium paid; that the new policy differed from the old one in containing the following clause which was not in the other:-" Coinsurance Clause. If the value of the property at the time of any fire shall be greater than the amount of the insurance thereon, the insurer shall be considered as coinsurer for such excess, and all losses shall be adjusted accordingly;" that the plaintiffs, relying on a faithful performance of the agreement on the part of the defendant to reinsure the property, and supposing the new policy to be of the same tenor as the one that the plaintiffs then held, omitted to examine or read the same, and did not know of the change till after the fire; that the new clause entirely changed the character of the insurance, and that the plaintiffs would not have paid the premium, nor received the new policy, had they known that the new clause was inserted therein; and had the defendant refused to perform its agreement the plaintiffs would have secured other insurance Palmer v. Hartford Ins. Co. elsewhere of the same character as that which they had by the first policy, which they could have easily done for the same price; that the goods on the 17th of August, 1884, were partly destroyed and greatly damaged by fire; that at the time of the insurance and of the fire they were of the value of $37,354; that the plaintiffs' loss was $5,218; that there was other insurance to the amount of $5,000, by reason of which the defendant was liable to pay only half the loss, namely, $2,609; and that the defendant refused to correct the policy, or issue one in conformity to the agreement, and insisted that the co-insurance clause should stand, and that it was not bound to pay more than it would be under the policy as it stands; praying for a correction of the policy in accordance with the agreement, and for a recovery of the money which they would be entitled to recover under the amended policy. The defendant demurred to the complaint, assigning the following grounds of demurrer : 1. Upon the facts stated in the complaint, the plaintiffs are not entitled to the relief sought. 2. The complaint does not aver that there was a mutual mistake between the parties as to the terms of the policy of insurance, or any agreement between them as to the specific terms of the new policy. 3. The plaintiffs were guilty of gross laches in not examining their policy, and thereupon notifying the defendant of their claim, so that the defendant might, before any loss have exercised its right of rescission. The court (Torrance, J.,) sustained the demurrer and rendered judgment for the defendant. The plaintiffs appealed. S. Lucas, for the appellants. 1. It is alleged in the complaint that there was an agreement between the parties as to the specific terms of the policy to be issued, for it is alleged that the defendant proposed to the plaintiffs to renew the insurance of $5,000, for the same premium and on the same terms and conditions con |