Page:Federal Reporter, 1st Series, Volume 5.djvu/686

 67e FEDERAL REPORTER. �WniSON V. QuBEN Ins.ïCo. of Livbbpool and London. �{Circuit Court, W- -D- Penntylvania. January 21, 1881.) �1. CONTRACT — MlBTAKE. �» Mutual mistake as to a material fact will ayoid a contract. �2. Samb — Samb — Eqtjity. �It is not necessary for either party to go into a court of equity fôr the purpose of setting asidë sucb contract. �3. Same— Same— Insubakcb Polict. �Under such circumstances a contract foi-ànsurance would not avoîd a prior policy containing the usual condition against other insurance. ' —[Ed. '■ ■ �Sur Motion of ex parte Defendant for a New Trial. �JW. if. JSZiio«, for plamtiff.: �George R. Bedford and Andrew F. Derr, for defendant. �AcHEsox, D. J. The policy of insurance sued on containa the lisual condition agaiinst other insurance, and provides that a breach tbereôî shall avoid the policy. The defence relied on was that in violation of this condition the plaintiff took subsequent insurance in the Lycoming Mutual Insur- ance Company. �There was no conflict of evidence as to any material mat- ter. The facts are as followB s On April 6, 1878, the plain- tiff visited the ofBce of Ei B. Young, the agent of the Lycom- ing' Mutual Insilrànce Company, in WeUsboro, Pennsylvania, in reference to insurance on other property. After he had transacted this business, and as he was hurriedly leaving to take a train to McEean county to attend a session of court, Young said to him that he had no insurance on the property, which' afterwards burned, and suggested that he ought to have insurance on it. In response to this suggestion the plaintiff said that if he had no insurance on the property he wanted it insured, but he did not want the property insured twice. The plaintiff then signed a blank application for in- surance and a blank premium note, which Young filled up and forwarded to the home ofSce of the Lycoming Company. Shortly afterwards the company sent Young a policy to be delivered to the plaintiff. ����