"Policies," says C. J. Pemberton (in the very case cited by Lord Holt), "are sacred things, and a merchant shall no more be allowed to go from what he has subscribed in them, than he that subscribes a bill of exchange." (h) Alterations in the policy at common law. made in a mere declara tion of interest the execution of the policy, stands on a different footing, and may be subsequent to The contract of the underwriters is complete when they A mistake have signed the policy; but a mere declaration of interest to be afterwards made stands on a different footing; it is the mere exercise of a power conferred on the insured, and need not of necessity be in writing: if, therefore, a broker has committed a blunder in making this declaration, as where he has declared goods by the wrong ship, this blunder may be rectified by parol evidence, either with, or without the assent of the underwriters. (i) corrected in a clear case by a court of law. themselves, however, may troduce into policies any al by consent, in terations, even after execution, subject only to Although it be true, however, that a court of law The parties cannot receive parol evidence to rectify a mistake in a policy, yet the parties themselves may, by consent, introduce any alterations into the policy, even after it is underwritten, which may be required by their mutual interests and sanctioned by their mutual agreement (subject, as we shall hereafter see, to the provisions of the Stamp Act); and such alterations, if properly signed, and not infringing the provisions of the Stamp Act, form as valid a contract between the parties as the terms of the original policy. As, however, no contract can be allowed to have the effect of varying or altering another, which is not of as high a nature as the instrument upon which it so professes to operate, these alterations must be in writing, either in a separate instrument, or by memorandum on the policy; and, in either case, subscribed by the underwriters, who are intended to be bound by them. (j) the operation of the stamp laws. But these al terations must be in writing, either on the policy or in another instru ment; The only ground upon which a written alteration of this and are only binding when kind can be binding, upon any of the parties to the original point, Bates v. Grabham, 2 Salk. 444 : the case there cited by Lord Holt as proving that parol evidence may vary 54. (h) Kaimes v. Knightly, Skinner, (i) Robinson v. Touray, 3 Camp. the terms of a policy, is Kaimes v. 158. S. C. 1 Maule & Sel. 215. (j) Kaimes v. Knightly, Skinner, the policy at common law. signed by the Alterations in policy, arises from his having signified his assent thereto by his signature: although, therefore, all the rest of the underwriters may have signed such an indorsement; yet, if only one have not done so, he is not bound by the policy, as altered; and this even where he has never refused to sign it, and the only reason for its not having been presented to him as to the rest of the underwriters, was his absence in a distant initials of the parties. Those underwriters who refuse to sign the alterations part of the country. (k) are not bound ations are What are ma terial alterations in policies at common law. Cases upon this point. Alteration of destination is material. So is the insertion, in writing, of a specific subject of insurance, in a policy executed in the common printed form. The general rule then is that any material alteration of the policy, by the assured, avoids the policy, except as to those underwriters who have consented to it in writing, by subscribing the memorandum, in which the alteration is specified. (1) The question has generally been, what constitutes a material alteration; and upon this point the following cases have arisen: Where a ship was insured from Virginia to Rotterdam, with leave to call at a port in England, and the assured, after the policy was underwritten, by consent of some of the underwriters (indorsed on the policy) altered her destination from Rotterdam to Hull: this was held to avoid the policy, as to all the underwriters, except those who had signed the indorsement. (m) So, where a policy was executed in the common printed form, without any description of the specific subject of insurance being inserted in writing, the subsequent insertion time of sailing of such description was held to be a material alteration, which So, altering under a war ranty. So, adding another terminus ad quem in the alternative. prevented the assured from recovering on the altered policy against any of the underwriters, except those who had put their signatures to the inserted clause. (n) So, where the assured, after subscription by the underwriter, altered the time of the warranty to sail, without his consent, this was held to be a material alteration. (o) So, where the assured altered the policy at common law. a policy "from Colmar to Portsmouth" into a policy "from Alterations in Colmar to Portsmouth, or Weymouth," Lord Ellenborough ruled that "he could not recover on the altered policy against an underwriter, who was ignorant of the alteration, even although when first informed of it the underwriter had said he would not take advantage of it." (p) So, where a ship was insured from " Cuba to Liverpool with liberty in that voyage to proceed to and touch and stay at and discharge and take in at any ports or places whatsoever, without prejudice:"-after the subscription of the policy a leave "to call off Jamaica" was inserted. The court held, that, as Jamaica was out of the direct course of the voyage insured, this was a material alteration which avoided the policy as to an underwriter who had not signed it; although his not doing so appeared to have arisen solely from his being out of the way, and therefore not applied to at the same time as the other underwriters, who had all, with the exception of the defendant, signified their assent by their signatures. (9) So, inserting, liberty to call out of the direct course of the voyage. ation unconsented to, if not material, does not avoid On the other hand, where the alteration is NOT material, it But an alter will not vitiate the policy in toto; but, in such case, if some of the underwriters have consented to the alteration, after the policy is executed, and others refuse, those who consent make the altered instrument their own; but those who do not, remain liable on their original contract. (r) The following alterations have been considered NOT to be material. A policy was originally filled up, "on the Three Sisters, at and from Cadiz and Seville to Liverpool:" after the policy was underwritten the broker added the words "Tres Hermanas" (Spanish for "the Three Sisters "), and also the words "both or either: " Lord Ellenborough said that, "as the English name, the Three Sisters, did not amount to a warranty that the ship was an English ship, the policy was not avoided by merely inserting the equivalent Spanish name of Tres Hermanas."" 1 B. Moore, 114. S. C. at N. P. Holt, 331. (p) Campbell v. Christie, 2 Stark. 64. (q) Forshaw v. Chabert, 3 Brod. & Bing. 158. As to the words "both or (r) Per Richardson, J., in Saunder son v. M'Callum, 4 J. B. Moore, 5. the policy in toto as to the dissentient underwriter, but leaves him liable on the original policy. What alterations are not material. The words Los Tres Hermanas, "The Three Sisters," as the Spanish name of the ship. inserted after the policy at common law. Alterations in either," his Lordship said, that "as the ship, as originally insured, had the option of going both to Seville and Cadiz or not, as it might suit the exigencies of the adventure, these words did not give any additional liberty, and therefore did not affect the legal operation of the instrument. " (s) The words "to trade," inserted touch and stay," not material. A ship was insured "from Liverpool to her port or ports of in a liberty to discharge and loading in Africa, during her stay there and back to Liverpool, with liberty to proceed and sail to and touch and stay at any ports or places wheresoever, to sell, barter, and exchange, and load, unload, or reload goods at any or all of the ports and places she may call at or proceed to." The broker, after the subscription of the policy, fearing that the words employed might not be sufficiently extensive to include a trading, added the words " and trade." He then presented it to the various underwriters for their consent to this alteration, which most of them signified by signing their initials to the underlined words: the defendant however refused to do so, alleging that he never underwrote trading policies to Africa. Upon this state of facts it was contended, that, as the defendant had expressly refused to underwrite a trading policy to Africa, the alteration in question must be deemed material; but the court were clearly of opinion that it was not so, because, independently of the words inserted, the plaintiff had, upon the true construction of the policy as it originally stood, liberty to trade on the coast of Africa, so that the added words had made no material alteration. (t) SECT. IX.-ART. 2. Alterations in the Policy, as affected by the Stamp Acts. $40. The cases hitherto considered were decided upon the principles of the common law, and from them it appears that any material alteration of the policy, introduced into it after it is effected, without the consent of the underwriters, renders it wholly void; but that the underwriter by sig (s) Clapham v. Cologan, 3 Camp. 382. (1) Sanderson v. Symonds, 1 Brod. & Bing. 426. nifying his assent to such alteration, is estopped from taking the objection, and the policy, as to him, remains in full force. The 35 George 3. c. 63. sect. 13., in effect provides, that even where the underwriter has so consented to the alteration in the policy, the altered policy shall be void, without a fresh stamp, unless the alteration comply with all the requisites specified in the clause. The clause is as follows: "That nothing in this act contained shall extend or be construed to extend to prohibit the making of any alteration which may lawfully be made in the terms and conditions of any policy of insurance, duly stamped as aforesaid, after the same shall have been underwritten, or to require any additional stamp, by reason of such alteration, so that such alteration be made, (1st,) before notice of the determination of the risk originally insured; (2d,) and the premium or consideration originally paid or contracted for shall exceed the rate of 10s. per cent on the sum insured; (3d,) and so that the THING insured shall REMAIN the property of the same person or persons; (4th,) and so that such alteration shall not prolong the term insured, beyond the period allowed by the act (u); (5th,) and so that no additional or further sum shall be insured by reason of such alteration." (v) at It will be observed, that this act does not legalise any alteration in policies, which would have been illegal common law where the underwriter has not signified his assent, the alteration, if material, still avoids the policy at common law; but, even though the underwriter have assented to it, the policy if not re-stamped will be void under the statute, unless the alteration comply with all the requisites of the 13th section; for no consent of parties can authorize an infringement of the revenue laws, and the under writer, however ungracious the defence may be, is not upon Alterations in the policy, as affected by the stamp acts. 35 G. 3. c. 63. s. 13. Several cases have been decided upon this section: one of Cases on the (u) Twelvemonths on a time policy. (v) This section ought to receive a liberal construction. Per Lord Ten terden, in Brockelbank v. Sugrue, 1 B. construction of the clause. |