Palmer v. Hartford Ins. Co. tained in the first policy. That policy being made a part of the complaint, the specific terms of the policy to be issued were definitely determined, and the proposition made by the defendant having been accepted, became the original contract of the parties. 1 Parsons on Cont., 483; May on Ins., § 45. 2. It was not necessary to aver that there was a mutual mistake between the parties as to the terms of the policy to be issued. There was no mistake on the part of either. It stands uncontradicted that the insurance sought by the plaintiffs is the one the defendant by its contract had agreed to give, and hence there could be no mistake in regard to that on the part of either party. The cause of complaint is that the defendant has not performed the contract admitted by the demurrer. It had agreed to deliver to the plaintiffs a policy of a certain character. It has not done it, but has delivered a policy of an entirely different character. Does it make any difference whether the defendant failed to do it by mistake or by design? If it delivered the policy by design, in violation of its contract, without disclosing its true character, then it was guilty of a fraud; and if guilty of a fraud, it is without excuse, and the contract should be enforced. Story v. Norwich & Wor. R. R. Co., 24 Conn., 113; Town of Essex v. Day, 52 id., 496; 1 Story Eq. Jur. § 187. The rule that a mistake must be mutual or a court will not reform a contract, is, in its proper application, founded in reason; and the reason is this: If a contract is corrected by a court of chancery, to make it conform to the intention of one of the parties, it is of course forcing a contract upon the other party which he never intended to make, unless his own intent concurred with that of the other party. Town of Essex v. Day, supra. But that is not this case. The plaintiffs are not seeking to force a contract on the defendant which it never made, but to enforce a contract it did make, and which became obligatory before a policy was delivered. May on Ins., § 14; Sheldon v. Conn. Mut. Life Ins. Co., 25 Conn., 207. If upon an agreement for insurance a policy be drawn by the insurance office, in Palmer v. Hartford Ins. Co. a form which differs from the terms of the agreement, and varies the rights of the parties insured, equity will interfere, and deal with the case on the footing of the agreement, and not on that of the policy. Kerr on Fraud & Mistake, 422. 3. The plaintiffs were not guilty of such laches as should deprive them of equitable relief. It comes with a poor grace from the defendant who committed the error or fraud, to blame the plaintiffs for trusting to it to do as it agreed and not detecting the error. This was not an instrument signed by the plaintiffs or given by them; it was simply received by them under the misapprehension that it was right, which misapprehension was induced by the confi dence they put in the defendant. And then it should be kept in mind that they had made a contract with the defendant whereby it was legally, as well as morally, bound to issue the proper policy. Courts have granted relief in cases very much stronger for defendants than this; and that, too, when there was no prior agreement on which to base the claim for relief. Wooden v. Haviland, 18 Conn., 101; Town of Essex v. Day, 52 id., 492. 4. If the defendant was deprived of any right of rescission it was caused by its own neglect or wrong. If it delivered the policy by mistake, it was its mistake. If by design, it was its own fraud. What claim on the plaintiffs has the defendant, simply because they omitted to detect its own mistake or fraud, by reason of the confidence they reposed in it? H. C. Robinson and C. E. Perkins, for the appellees. 1. The general rule is well settled that where parties have once reduced their agreement to writing, and it has been delivered and received, no evidence of previous negotiations or arrangements, whether verbal or in writing, can be received to add to, alter or contradict the terms of the written instrument. This is the well-settled rule both at law and in equity. The rule is uniform at law, but there are certain exceptions to it in equity. These are that if one party to the contract has been guilty of fraud, by which the Palmer v. Hartford Ins. Co. contract is made different from what it was agreed to be, or if it is so made by the mutual mistake of the parties, equity will interfere, and make the contract what it should have been; but these are the only grounds. The subject is fully treated in 1 Story's Eq. Jurisprudence, §§ 154, 155. In Hearne v. Marine Ins. Co., 20 Wall., 488, Judge SWAYNE says, on page 490: "The reformation of written contracts, for fraud or mistake, is an ordinary head of equity jurisdiction." It is evident that no claim can be made under the head of fraud, for no fraud is alleged, and, as is said in Crocker v. Higgins, 7 Conn., 346, "unless fraud is alleged in the bill, it cannot be presumed or proved in aid of the plaintiff's case." And as to mistake, in the first place, it is not alleged that there was any mistake of any kind by either party in making the policy, nor that there was an accidental mistake of the scrivener or clerk in drawing it, nor that there was a mutual mistake. But the real ground of the claim appears from the latter part of the complaint, where the plaintiffs allege that there was a mistake on their part alone. They allege that they received the policy as it is, but did not look at or read it, and, if they had done so, they would not have received it, but would have refused to take it, and applied elsewhere for other insurance; that thereby they were mistaken as to what the policy really was, received it under such mistake, and now, after the fire, want the policy reformed to make it what they supposed it was going to be. This was the claim made by the plaintiffs below, and the real question in the case is, whether if these allegations are true this court will interfere. Nothing can be better settled than that in such a case no relief will be granted. The mistake must be a mutual one; both parties must have done what neither intended to do. German Ins. Co. v. Davis, 131 Mass., 316; Hearne v. Marine Ins. Co., 20 Wall., 488; Spare v. Ins. Co., 13 Ins. Law Journal, 286; Brugger v. State Investment Ins. Co., 5 Sawyer, 310; Paine v. Jones, 75 N. York, 593; Malleable Iron Works v. Phoenix Ins. Co., 25 Conn., 465; Brainard v. Arnold, 27 id., 624; Palmer v. Hartford Ins. Co. Woodbury Savings Bank v. Charter Oak Ins. Co., 31 id., 517; Bishop v. Clay Ins. Co., 49 id., 167. 2. An additional reason for not granting the relief asked for, is the gross negligence of the plaintiffs in not examining the policy when given them, and not until after the fire. It is a well settled principle that equity will not relieve where the applicant has been guilty of negligence, and this principle has often been applied to this question of the necessity of reading contracts received from another. It has many times been set up as a defense that the party did not read the contract delivered to him in performance of an agreement, but not successfully. In Bishop v. Clay Ins. Co., 49 Conn., 167, the court say, (p. 172:) "Now, if they exercised ordinary diligence and caution in caring for their own interests, we may assume that they examined the policy when received, and were satisfied that it was right." In Ryan v. World Life Ins. Co., 41 Conn., 172, the court says: "She says that she and her husband signed the application without reading it, and without its being read to them. That of itself was inexcusable negligence." In Grace v. Adams, 100 Mass., 507, the court says: "It was his duty to read it. The law presumes, in the absence of fraud or imposition, that he did read it, or was otherwise informed of its contents, and was willing to assent to its terms without reading. Any other rule would fail to conform to the experience of men. Written contracts are intended to preserve the exact terms of the obligations assumed, so that they may not be subject to the chances of a want of recollection or an intentional misstatement. The defendants have a right to this protection, and cannot be deprived of it by a willful or negligent omission to read the paper." In Monitor Ins. Co. v. Buffum, 115 Mass., 345, the court says: "In the absence of fraud he is conclusively presumed to assent to those terms. He cannot be permitted to qualify his contract, or his relations to the subject matter, by asserting and proving that he never read the writing and was ignorant of its contents." The Supreme Court of Pennsylvania in the very late case of Susquehanna Ins. Co. v. Swank, 102 Penn. St., Palmer v. Hartford Ins. Co. 17, where the insured, when he signed his application, was assured by the agent that his policy should be written on the "annual interest" plan which required no assessment, but whose policy, in fact, was written on the assessment plan, and who retained the policy from June 9th, 1877, until September or October of the same year, when he sent it to the agent with protests, and in October of the following year returned it to the company, held that it was his duty to read the policy, and that after retaining it as he did, without examination, a court of equity would not interfere, and say: "During all this time he had the benefit of the insurance. In case of loss the company would have been liable. An instrument may be reformed in case of fraud, accident or mistake, but where the mistake was the result of the supine negligence of a party who sleeps upon his rights until other duties and responsibilities have grown up, the law will not help him." The Supreme Court of the United States in the recent case of N. York Life Ins. Co. v. Fletcher, 117 U. S. R., 519, remarks upon the duty of examining insurance policies, and the effect of receiving them without reading. The opinion says, p. 534: "He would have discovered by inspection that a fraud had been perpetrated. The retention of the policy was an approval of the application and its contents. The consequence of that approval cannot after his death be avoided." The opinion then cites approvingly the case of Am. Ins. Co. v. Neiberger, 74 Misso., 167, where the assured agreed with the agent that the policy to be issued should contain a clause giving him the right to cancel at the end of a year. The policy contained no such clause, but he retained it from January 25th till May 10th, 1875. The court in that case said: "It will be the duty of the insured when he receives the policy, promptly to examine it. After such delay he will be deemed to have accepted the policy as issued." The same case approves of Richardson v. Maine Ins. Co., 46 Maine, 394, where, without the applicant's knowledge, the agent of the insurance. company had falsely stated that there was no mortgage upon the property insured. The policy did not set out the |