the time of sailing from the 1st of June to the 1st of August Sect. 48. did not require a new stamp; for it was a mere alteration in the terms and conditions of the policy, and not in the subjectmatter of the insurance; for, non constat, that the goods shipped on board before the altered time of sailing were different goods from those intended to be shipped on board originally (q). So, where a policy was "on hemp, marked R.," it was held that a memorandum withdrawing the mark did not make a fresh stamp necessary (r). worthiness. 49. We have already seen that an express warranty may Memorandum be altered without a fresh stamp (s); it has also been decided waiving imthat a memorandum by which the underwriter consents to ranty of seawaive the implied warranty that the ship was seaworthy at the time of sailing is not such an alteration of the policy as to require a fresh stamp, for such consent prevents the inference which would otherwise arise, that the unseaworthiness was a determination of the risk (t). a mistake. 50. Even where an alteration is not within the exemption Correction of created by sect. 96 of the Stamp Act, it will not require a fresh stamp if it be merely the correction of a mistake. There is a wide difference, as regards the stamp, between cases in which the alteration is such a correction only, and those in which it is in fact intended to make a new instrument: the one is an alteration of the contract for the mere purpose of making it express in terms what both parties intended it should express at the time of making it; the other is an alteration for the purpose of giving it a different meaning and extent to that which both parties intended it to bear at the moment of its execution. It is for this reason that alterations of the first class require no fresh stamp, while those of the second do (u). (9) Kensington v. Inglis (1807), 8 East, 273. (r) Hubbard v. Jackson (1811), 4 Taunt. 169. (8) Ante, s. 47. (t) Weir v. Aberdein (1820), 2 B. & Ald. 320, as explained in Quebec Marine Ins. Co. v. Commercial Bank of Canada (1870), L. R. 3 P. C. 234. (u) Cole v. Parkin (1810), 12 East, 471. Sect. 50. Effect of not re-stamping on the original instrument. Thus, in a case where, the assured having no interest in the ship, but only in the cargo, the words "on ship," which had been inserted by pure mistake, were struck out, and the words "on goods as interest may appear" substituted in their room, it was held, that the memorandum empowering this alteration required no new stamp (r). This case is distinguished from that of Hill v. Patten on the ground that there the assured was owner of the ship, and, as such, interested in the outfit: and also, that there the intention really was to alter the nature of the subject-matter from what the parties had originally meant and understood it to be; whereas here the intention only was to correct an error, and the alteration had only the effect of putting the policy into the state in which it was originally intended to have been framed. 51. Where no rights or liabilities can be enforced under the altered instrument by reason of the stamp laws, the rights and liabilities which existed under the original instrument are nevertheless destroyed by the alteration (y). After the Court, in Hill v. Patten, had decided that the alteration of "outfits" into " goods was one which could not be made without a fresh stamp, and therefore that the plaintiff could not recover on the policy as altered, the plaintiff brought an action upon the policy in its original form; but the Court held he could not recover on that either (≈). Lord Ellenborough said, "that the altered policy, though ineffectual as an instrument to sue on, was effectual to do away with the former agreement, which was thereby abandoned " (a); and Le Blanc, J., asks "how the Court can enforce an agreement, after the parties themselves, upon the very face of the same instrument, have declared that it is not their agreement, (x) Sawtell v. Loudon (1814), 5 Taunt. 359; 1 Marshall, 99; see also Robinson v. Touray (1811), 3 Camp. 158; 1 M. & S. 217. In that case the policy was on goods by "ship or ships" to be thereafter declared, and the broker by mistake made declaration of a wrong ship. It was held that a memorandum rectifying this mistake required no fresh stamp. (y) Per Bayley, J., in Reed v. Deere (1827), 7 B. & C. 264. (z) (1307), 1 Camp. 72; French v. Patten (1808), 9 East, 351. (a) Ibid. 355. and have actually written another and a different agreement Sect. 51. in the place of it" (b). It would seem to make no difference whether the memorandum embodying the alteration is written on the back or the face of the original policy (c), provided it be signed by the underwriter. 52. The assured, after acceptance of a valid policy, may Forfeiture of forfeit all benefit under it; for instance, by breach or non- policy. performance of one of the warranties expressed or implied in the instrument itself, or of a condition precedent under which the instrument was granted (d), or by such an alteration of the instrument as at common law or by virtue of the Stamp Acts renders it a nullity, or by such illegality affecting the assured adventure as makes it incapable of protection under the sanction of the law. forfeiture. We have seen that a forfeiture for breach of a warranty Waiver of may be waived by a memorandum endorsed on the policy and signed by the underwriter (e). But when a policy was vitiated by concealment of a material fact on the part of the assured's agent, and afterwards the underwriter, upon learning what had happened, wrote to the plaintiff's agents in these words: "Understanding that the steamer B. has been on shore, I do not consider that my risk commences until the vessel has been surveyed and repaired "—this letter was held not to be a waiver of the breach of the warranty (ƒ). 53. The question of continuing or renewing a policy has Continuing or renewing been considered in a couple of cases (g). Subject to the policy. provisions of the Stamp Act being complied with, there is no reason why a time policy should not be expressed to continue (b) French v. Patten (1808), 9 East, 357. (c) Reed v. Deere (1827), 7 B. & C. 261. (d) Hughes v. Tindall (1856), 18 C. B. 98; Turnbull v. Woolfe (1863), 9 Jur. N. S. 57. (e) Weir v. Aberdein, ante, 8. 49. (f) Russell v. Thornton (1859), 4 H. & N. 788; 29 L. J. Ex. 9; in error (1860), 6 H. & N. 140; 30 (g) See per Cockburn, C. J., in Sect. 53. Rescission of contract. or to be renewable for a further period of time, unless determined by notice (h). 54. The rescission of the contract must be the act of both parties to it, the assured and the insurer. The insurance broker, acting for the former, has no implied authority, merely by virtue of his capacity as such agent, to demand or consent to the cancellation of the policy, even though it had been left in his hands (i). But the conduct of the principals in this matter may be so ambiguous that their intention may become a question of law for the Court upon the construction of their written communications, or a question of fact for a jury upon consideration of what was said and done between them (k). A vessel insured against fire for twelve months, ending the 29th of July, arrived at Liverpool on the 12th of April, and the assured wrote a letter to the insurance broker, proposing a cancellation of the policy and return of premium," say from the 12th of April." The other sent for the policy "to put forward returns for cancellation," and received it. On the 21st of April the broker cancelled it on the terms of returning premium from the 30th April to the 30th July, alleging a custom of insurance brokers not to reckon broken months. The ship was burnt on the 22nd April, and that same day the assured wrote a letter, withdrawing his proposal to cancel, as he had then received no answer: and whether, under these circumstances, there had been a cancellation, and on what terms, was the question. It was held that the broker, by sending for the policy on receipt of the proposal to cancel, must be taken to have acceded to the terms proposed, and to have cancelled on those terms. The plaintiff therefore lost the insurance, and recovered the differ (h) A policy cannot, of course, be prolonged so as to cover a period of more than one year. Stamp Act, 1891, ss. 93 (2), 96. See Charlesworth v. Faber (1900), 5 Com. Cas. 408, and post, s. 440. (i) Xenos v. Wickham (1866), L. R. 2 H. L. 296; in the Ex. Ch. (1865), 14 C. B. N. S. 435, 449, 463; see also Russell v. Thornton (1859), 4 H. & N. 788. (k) Ionides v. Harford (1859), 29 L. J. Ex. 36. ence on the return of premium for the period between the 12th and 30th April (7). A policy on ship from Liverpool to Philadelphia and United Kingdom was altered by memorandum substituting Baltimore for Philadelphia, and was afterwards further altered by this memorandum: "In consideration of an additional premium, it is hereby agreed to allow the vessel to go to Antwerp." In this state of the policy, the ship arrived at Antwerp and was ordered to Leith, but was lost on her way thither. It was held that she was uninsured at the time of the loss, as the effect of the second memorandum was to terminate the risk at Antwerp (m). (1) Baines v. Woodfall (1859), 6 C. B. N. S. 657; 28 L. J. C. P. 338. Sect. 54. F VOL. I. |