Page:Federal Reporter, 1st Series, Volume 5.djvu/688

 676 ���FEDEBAIi BEFOBTKB. ���not aiready insured, there was no second contraet of insur- ance in violation of the condition of the policy in suit. Of course, this instruction had regard to the other undisputed facts in evidence. �The jury found that there was such mutual misapprehen- sion, and thereby, in my judgment, the plaintiff's case has been relieved from ail sort of difficulty. �The plaintiff did not go to Young's office to effect insurance upon the property which was afterwards burned. The sug- gestion to take the insurance came from Young, who was ignorant of the prior policy, and supposed the property to be uninsured. The plaintiff was in haste to leave on a journey, and at the time overlooked and wholly forgot the insurance in the Queen Company. Now a party who has bona fide entirely forgotten the facts, acts under the like mistake as if he had never known them. Kelly v. Solari, 9 Mees. & Wels. 54, 68. Here, then, the parties were dealing under a mutuai mistake in respect to a matter of fact which constituted the very basis of the contraet. Neither intende d that there should be a second insurance, but both acted in the bona fide belief that the property was uninsured. It was a fundamental con- dition of the Lycoming policy that there was no prior insur- ance. This was of the very essence of the contraet. The mistake, therefore, was as to a matter of fact, not only mate- rial but of vital importance. The parties having acted in such mutual error, neither of them could be held to the contraet. Story's Eq. Jur. §§ 134, 140, etseq. �The case f ails clearly within Chief Justice Gibson's apt defi- nition of a mutual mistake of fact which will învalidate a con- traet, expressed in Gibson v. The Union Bolling Mill Co. 3 Watts, 32, 37, where he says : "But the miseonception which avoids a contraet is necessarily a mutual one, and of a fact which entered into the contemplation of both parties as a con- dition of their assent." �It is to be observed that it was not necessary for either of the parties to go into a court of equity to set aside the Ly- coming policy, It had never been delivered, and as soon as ����