ICY. Evidence was not admissible to show that a fire policy was intended to cover property different from that plainly described therein. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1818-1824; Dec. Dig. § 405.*] 5. INSURANCE (§ 650*)-FIRE INSURANCE-ADMISSION OF EVIDENCE. Where the company was estopped from setting up the instrument described in a duplicate fire policy issued after the insured had lost the original, there was no reversible error in excluding from evidence the application for the original policy, when offered to show that the description in the duplicate policy resulted from a mistake. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1671, 1672; Dec. Dig. § 650.*] 6. APPEAL AND ERROR (§ 1053*)-HARMLESS ERROR-ADMISSION OF EVIDENCE. The company was not prejudiced by the admission in evidence, in an action on a fire policy, of the proof of loss, where the court instructed that the statements contained therein could not be considered as evidence "of the fact or extent of the plaintiff's loss." the president as to what matter he referred to in the last letter above quoted was properly excluded, as the letters taken together showed to what he referred. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 440; Dec. Dig. § 151.*] 11. INSURANCE (§ 555*)-FIRE INSURANCEFORFEITURE-WAIVER-KNOWLEDGE. Actual knowledge of a forfeiture of a fire policy by failure to file proofs of loss is not necessary to a waiver thereof, if the insurance company should have known of the forfeiture, so that knowledge of failure to file proof of loss within 30 days after the fire, as required by the policy, will be imputed to the president of a fire insurance company, where the company should have known by exercising due diligence that the proof of loss had not been filed within that time. [Ed. Note. For other cases, see Insurance, Dec. Dig. § 555.*] 12. INSURANCE (§ 558*)-FIRE INSURANCEWAIVER OF FORFEITURE-INTENTION. An insurance company which recognizes the validity of a fire policy with full knowledge of a forfeiture, or which acts so as to induce insured to reasonably believe that it does not intend to rely on the forfeiture, cannot afterwards assert that it did not intend to waive the forfeiture. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1382-1390; Dec. Dig. § 558.*] 13. EXCEPTIONS, BILL OF (§ 20*) - FORM COMMINGLING EXCEPTIONS. A bill of exceptions will not be considered by the Supreme Court where it contains several exceptions. [Ed. Note.-For other cases, see Exceptions, Bill of, Cent. Dig. §§ 21-28; Dec. Dig. § 20.*] 14. TRIAL (§ 106*)-DISCRETION OF COURTARGUMENTS OF COUNSEL. While counsel should keep within the rec[Ed. Note.-For other cases, see Appeal and ord and instructions in their argument, whethError, Cent. Dig. 88 4178-4184; Dec. Dig. §er the argument is within the record is largely a question for the court's discretion. [Ed. Note.-For other cases, see Trial, Cent. Dig. 267; Dec. Dig. § 106.*] 1053.*] 7. INSURANCE (§ 658*) - FIRE INSURANCE 8. INSURANCE (§ 648*) - FIRE INSURANCE 15. APPEAL AND ERROR (§ 1060*)—HARMLESS ERROR-IMPROPER ARGUMENT. Where the court instructed in an action on a fire policy that the jury must find a waiver of failure to furnish proof of loss within the required time before plaintiff could recover, and the provisions of the policy were also put in evidence, any error by plaintiff's counEvidence by the president of the fire in- sel in stating in argument that it was not fair surance company whose policy was sued on as to sneak into a contract a provision requiring to why he was not able to take up the ad-proofs in 30 days in small diamond type, on justment of the insurance until after an election, as stated in a letter written by him after the fire, was properly rejected as immaterial. [Ed. Note. For other cases, see Insurance, Dec. Dig. § 648.*] 9. INSURANCE (§ 664*) - FIRE INSURANCE ACTIONS-ADMISSION OF EVIDENCE. Evidence of waiver of proof of loss by defendant fire insurance company in other cases was properly rejected as immaterial. [Ed. Note.-For other cases, see Insurance, Dec. Dig. 664.*] 10. EVIDENCE (§ 151*) PURPOSE OR STATE OF MIND CORRESPONDENCE. the ground that it was not within the record, could not have misled the jury so as to injure the insurance company. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. § 1060.*] 16. TRIAL (§ 252*)-INSTRUCTIONS-CONFORMITY TO EVIDENCE. Requested prayers which were based upon evidence excluded by the court were properly refused. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 596-612; Dec. Dig. § 252.*] Appeal from Baltimore Court of Common Pleas; Thos. Ireland Elliott, Judge. In an action on a fire policy, the agent of the insured wrote to the fire insurance company's president asking when they might expect an adjustment of the insurance in his company, to which the president replied that he had been away from home, and would "not be able to take this matter up with you until after the election." Held, that a question to See, also, 113 Md. 430, 77 Atl. 378. Action by the Conowingo Bridge Company against the Citizens' Mutual Fire Insurance Company of Cecil County. Judgment for plaintiff, and defendant appeals. Affirmed. The following prayers were refused to de- that there is no evidence in this case to fendant: "(1) At the request of the defendant, the court instructs the jury that, under the uncontradicted evidence in this case and under the pleadings, there is no evidence legally sufficient to entitle the plaintiff to recover, and the verdict must, therefore, be for the defendant." Refused. "(3) At the request of the defendant, the court instructs the jury that by the uncontradicted evidence in the case the plaintiff failed to furnish proofs of loss within 30 days as required by the policy, and therefore their verdict must be for the defendant, unless the jury find that the defendant has waived the failure to file proofs of loss within the time required, and the jury are further instructed they are not at liberty to find that the defendant did waive said breach of the conditions of the policy, unless they find that there was an intentional abandonment of said breach by some authorized agent of the defendant company having knowledge of the forfeiture." Refused. show that at the time the said William T. Warburton wrote the letter of October 26, 1907, he either knew of the forfeiture of the policy then existing, or intended to waive it, and therefore their verdict must be for the defendant, there being no evidence in this case other than the said letter legally sufficient to show any waiver by the defendant.” Refused. "(7) At the request of the defendant, the court instructs the jury that if they find that the witness William T. Warburton, president of the defendant company, had no actual authority from it to waive the plaintiff's failure to file proofs of loss within 30 days, as required by the policy, and further find that the plaintiff was in no way misled to its prejudice by the correspondence between Thomas H. Robinson and William T. Warburton offered in evidence in this case, then there is no evidence in this case legally sufficient to show any waiver by the defendant of the plaintiff's failure to file proofs of loss as required by the policy." Refused. "(8) At the request of the defendant, the court instructs the jury that if they find that the proofs of loss were received by the defendant's secretary, Charles E. Warburton, on August 6, 1907, and that thereupon the secretary called to the attention of the directors of the company the fact that the policy requirement as to furnishing proofs of "(4) At the request of the defendant, the court instructs the jury that it appears from the uncontradicted evidence in this case that at the time that the witness William T. Warburton wrote the letter of October 26, 1907, to Thomas H. Robinson, the said Warburton did not know that the proofs of loss required to be furnished by the insured under the policy sued on had not been furnish-loss 30 days after the fire had not been comed within thirty days as required by the policy; and, there being no evidence in this case legally sufficient to show any waiver by the defendant of the failure to furnish said proofs of loss other than said letter of October 27, 1907, therefore, their verdict must be for the defendant." Refused. "(5) At the request of the defendant, the court instructs the jury that by the uncontradicted evidence the witness William T. Warburton had no express or implied authority to bind the defendant by waiving the failure to file proofs of loss within the time required by the policy; and, as all the acts alleged by the plaintiff to constitute evidence of a waiver occurred after the forfeiture of the policy by reason of the failure to file proofs of loss within 30 days after the fire, the plaintiff is not entitled to rely upon any apparent authority of the said Warburton to waive said proofs of loss, there being no evidence in the case legally sufficient to show that the plaintiff was in any way misled to its prejudice by said alleged waiver by the said Warburton, and their verdict must, therefore, be for the defendant." Refused. "(6) At the request of the defendant, the court instructs the jury that a waiver by the defendant of the forfeiture of the policy by reason of the failure to file proofs of loss within 30 days means an intentional aban plied with, and was instructed by said directors not to waive said forfeiture, but that the company would insist thereon, and at the time of writing the letter of October, 1907, the president of the company, William T. Warburton, had no actual authority from the company to waive failure to file the proofs within the time required, and did not know at the time of writing said letter of said forfeiture, and did not learn thereof until on January 3, 1908, when he wrote the letter of that date offered in evidence, then there is no evidence in the case legally sufficient to show any waiver by the defendant of the failure of the plaintiff to file proofs of loss as required within the time required by the policy, and their verdict must be for the defendant." Refused. "(9) At the request of the defendant, the court instructs the jury that by the true construction of the contract between the parties it consisted, not only of the policy 1392 offered in evidence, but also of the application No. 1376 therein referred to, and the by-laws of the defendant company also admitted in evidence, and that by the true construction of said whole contract it appears that the plaintiff intended to obtain insurance on the short bridge only, which by the uncontradicted evidence was not destroyed by the fire, and, there being no evidence in this case legally sufficient to show ty on the policy form was requested or authorized by the plaintiff, the verdict must be for the defendant." Refused. "(10) At the request of the defendant, the court instructs the jury that, by the true construction of the insurance policy referred to in the declaration and offered in evidence by the plaintiff numbered 1392, the insurance contract therein contained consisted, not only of said policy 1392, but also of the application in writing, No. 1376, therein referred to, and also the by-laws of the defendant company, and that it appears from said whole contract the minds of the parties never met on the identity of the property to be insured, and the plaintiff, therefore, is not entitled to recover in a suit at law on said contract, and the verdict must, therefore, be for the defendant." Refused. "(11) At the request of the defendant, the court instructs the jury that if it finds that the typewritten clause pasted on the policy reading, 'other insurance permitted without notice until required' was not placed thereon by the defendant, or by any agent or employé thereof, then their verdict must be for the defendant, the evidence being uncontradicted that there was other insurance on the main bridge at the time of the issuance | of said policy sued on, and said policy distinctly providing that it should be void in case of other insurance on the property." Refused. county, and consisted of what was called the "main bridge," which was 1,328 feet long, and extended from the Harford county side of the river to a causeway, about 100 feet long, constructed on an island, and another bridge called the "short bridge," which was 500 feet long, and extended from the other end of said causeway to the Cecil county shore. Seven hundred and ninety-nine feet of the main bridge were in Hartford county, and the remaining 529 feet of the main bridge and the short bridge were in Cecil county. The main bridge was totally destroyed by fire on the 5th of June, 1907, and on the 8th of June the secretary of the appellee, the Conowingo Bridge Company, wrote to the secretary of the appellant, the Citizens' Mutual Fire Insurance Company, notifying him that "the main structure of the Conowingo bridge located in Cecil and Harford counties" had been entirely consumed by fire, and that the loss was only partially covered by the insurance set out in the letter, amounting to $21,000, including the policy sued on. No reply to said notice was received by the appellee. On the 30th of July, 1907, Thomas H. Robinson, Esq., in whose hands the appellee had placed all of the policies for collection, wrote the president of the appellant, W. T. Warburton, Esq., stating that the several stock companies interested in said loss desired "to arbitrate the question of the value of the bridge," and asking Mr. Warburton to advise him "whether or not" his company desired to participate in the arbitration, but there does not appear that there was any reply to that letter. Proof of loss was mailed to the appellant on the 5th of August, 1907, and received by it on the 6th of August, and on the 14th of October, 1907, Mr. Robinson wrote to the president of the appellant again, as follows: "My Dear Sir: The directors of the Conowingo Bridge Company requested me to ask you when they expect an adjustment of the insurance amounting to $3,000.00 in your company on the bridge that was recently destroyed by fire. Kindly let me hear from you and oblige, Very truly yours," etc. To this letter the president of the appellant on the 26th of October, 1907, replied: "My Dear Sir: Your letter of the 14th inst., in reference to the insurance on Conowingo bridge, was duly received at my office. I have been almost constantly away from home, and I will not be able to take this matter up with you until after the election, at that time I will write you fully upon the subject. Yours truly," etc. On the 2d of January, 1908, Mr. Robinson wrote the president of the appellant, stating that he had forgotten until again reminded by the directors of the bridge company to take up with him the matter of the adjustment of It appears from the record in this case, the insurance in his company, and asking as it did on the former appeal, that the him when he could expect a settlement, and Conowingo bridge extended from Harford in reply the president of the appellant wrote "(12) At the request of the defendant, the court instructs the jury that by the uncontradicted evidence the policy 1392 offered in evidence was first issued without any permission for other insurance indorsed thereon; that there is no evidence in this case legally sufficient to show that the phrase, 'other insurance permitted without notice until required,' typewritten on the policy by a separate sheet annexed thereto, was ever placed thereon by the authority of the defendant company; that by the uncontradicted eyidence there was other insurance on the property destroyed by fire; that the policy 1392 distinctly provided that it should be void in case of other insurance, and therefore their verdict must be for the defendant." Refused. Argued before BOYD, C. J., and BRISCOE, PEARCE, THOMAS, PATTISON, URNER, and STOCKBRIDGE, JJ. W. Calvin Chestnut, for appellant. Thomas H. Robinson and Shirley Carter, for appellee. THOMAS, J. This is the second appeal in this case. The suit is on a fire insurance policy for $3,000, and the property described in the policy is "that part of main Conowingo bridge across the Susquehanna river located in Cecil county." ter has just been received in regard to the | That said application further provided that claim of the Conowingo Bridge Company for the applicant agreed that the statements insurance. There is no proof of loss submit- made therein were true, and that the applicated by the company according to the terms tion should "constitute a part of the policy of its policy, and the directors have nothing to be issued thereon and a warranty by the to act upon," etc. Mr. Robinson immediate- insured, and that the insured" would "accept ly replied to this letter, expressing surprise said policy subject to the provisions of" the that the appellant should take such a posi- "charter, by-laws, rules, and regulations" of tion, and stating that, if the appellant in- the company. The plea further alleges that tended to stand upon such a technical point, "said application was number '1376,' and an it should have notified him before, as he insurance policy was issued on or about said "had relied upon the matter being adjusted February 10th, 1907, to run for a period of without difficulty," and that he was the five years thereafter by the secretary of cause of any delay in furnishing proof of the company in exact accordance with said loss. application. And thereafter, on or about the 28th day of March, 1907, the president of the plaintiff company called at the office of the defendant company, inquired for the secretary (who was then confined to his room with typhoid fever), and met Mr. Henry A. Warburton, an attorney at law having his insurance company, who then informed the said Caldwell that the secretary was sick and absent, and Caldwell stated that he had come to see about some insurance on the The appellant having refused to pay the insurance, suit was brought and the case was finally moved to the court of common pleas of Baltimore city, where the first trial resulted in a verdict for the plaintiff, appellee, for the amount of the policy and interest. On appeal this court sustained the rul-office in the same room as that of the fire ings of the court below on the pleadings, and held that there was no error in its rulings admitting in evidence the policy sued on, proof of loss and the letters to which we have just referred, or in the granting of Conowingo bridge. The said Warburton replaintiff's first and third prayers and the re-plied that he could not issue insurance, but jection of defendant's prayers, but because of the error in the granting of plaintiff's second prayer the judgment was reversed and the case was remanded for a new trial. At the second trial the defendant, on the 7th of February, 1911, filed its tenth plea for defense upon equitable grounds, to which the plaintiff demurred, and the demurrer was sustained. During the trial the defendant reserved 28 exceptions, the first 26 of which were to the rulings of the court below on the evidence, the twenty-seventh to the granting of the plaintiff's three prayers and the rejection of the first, third, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, and twelfth prayers of the defendant, and the twenty-eighth is to the refusal of the court below to rule that a certain part of the argument of counsel for the plaintiff before the jury was improper. The verdict and judgment being for the plaintiff, the defendant has again appealed. that application would have to be made that he did not wish a new policy, but that to the directors, and then Caldwell stated been issued and desired to obtain a copy or he had lost or mislaid a policy which had ton, having access to the policy forms in the duplicate; and thereupon the said WarburCaldwell, undertook to make up and issue a same room, and desiring to accommodate Mr. duplicate policy, being the paper referred to in the declaration as 'Policy No. 1392,' wherein the property was described as follows: To the following property herein described (and also described in application No. 1376).' But that on the typewritten form pasted on said policy so delivered by the said Warburton to the said Caldwell, by mistake, the property was described as follows: $3.000 on the part of main Conowingo bridge, across the Susquehanna river located in Cecil county, Maryland.' And by the printed conditions of said policy so made up and delivered by the said Warburton it was further provided: 'If any application, survey, plan, or description of property be referred to in this policy, it shall be a part of this contract and warranty by the insured.'" Defendant's tenth plea alleges: That the defendant was a mutual company, and that under its by-laws policies could only be is sued upon applications in writing, on forms provided by the company, containing a de- Said plea further alleges "that the said scription of the property. That on the 10th Henry A. Warburton was, not an officer or of February, 1907, the plaintiff, by its pres-agent of the defendant, and had no authoriident, C. C. Caldwell, applied in writing, on ty whatever to make or change the contract an authorized form, "for insurance on the of insurance existing between the parties, following described property: $3,000 on their and intended only to deliver a copy or dusingle track, wooden bridge about 500 feet plicate of the original policy stated by the long, covered with shingles, set 100 feet dis- said Caldwell to have been lost or mislaid tant from main bridge, on the east side of to cover the unexpired portion of the term the Susquehanna river, Cecil county, Mary- of five years for which the policy had origland. Privilege to make repairs and to carry inally been written. The said Warburton over, attach and maintain telegraph wires then and there stamped the policy register suance with the following note "Duplicate."" That "at the time of issuing said writing the names of the president and secretary of the company were affixed thereto by a stamp. and were not signed by these officers, and no new application was filed by the plaintiff, or the said Caldwell for it, and no new premium was paid; and it was not the intention of the parties to make a new contract, but the description on the policy form above referred to was a mistake, which was occasioned by reason of the said Warburton's unfamiliarity with the original transaction, and the plaintiff did not intend to change the contract, and the mistake was, therefore, mutual, or the plaintiff's conduct, if said mistake was noticed by it, was inequitable in not calling the same to the attention of said Warburton." That "the said Warburton, regarding his action in the matter as a clerical one only, did not call the same to the attention of the secretary of the company, and such mistake was not discovered by any agent, officer, or employé of the defendant company until on or about January 27, 1911, when, on a conference between the president of the company and its counsel preparatory to a second trial of the case, a request was made by said counsel for the application referred to in the policy sued on, and the original application, which was then and had long been on deposit in a bank in Elkton, was procured and the mistake then first discovered." That "said application was not produced at the first trial of the case, and its provisions were not known at that time to the counsel that tried the case for the defendant." upon which it now relies. After a delay of nearly four years with full knowledge of the alleged mistake, or what amounts to the same thing, with the means of discovery at hand, and after a loss, and after the case has been once tried, and payment has been refused and suit has been defended upon other grounds, the defendant would have no standing in a court of equity to have the mistake corrected and the policy reformed, and, unless a plea of this kind presents a case that would entitle the pleader to relief in a court of equity, it must be bad as a defense on equitable grounds in a court of law. [2] In order to correct a mistake and reform a contract, the application to a court of equity must be made without unreasonable delay, and the time in which relief should be sought begins to run from the time the mistake was discovered or could have been discovered by the use of due diligence. Keedy v. Nally, 63 Md. 311. [3, 4] So apart from any other consideration the demurrer to the plea, for the reason stated, was properly sustained, and, as it was decided on the former appeal (113 Md. 430, 77 Atl. 378) that, under the pleadings in the case, the execution of the policy sued on was admitted, the facts alleged in the plea were not admissible under the general issue plea for the purpose of showing that said policy had not been executed by the defendant, nor could they be introduced for the purpose of contradicting or varying the terms of the contract by showing that the parties intended it to cover a different property from that described in the policy. The case of Fifer v. Clearfield Coal Co., 103 Md. [1] In so far as the plea attempts to set up 1, 62 Atl. 1122, and United Rys. Co. v. Wehr, the alleged mistake in the description of the 103 Md. 323, 63 Atl. 475, cited by counsel property as a defense, it is defective, in that, for the appellant, do not warrant the admiswhile it charges that the mistake was not sion of the evidence referred to in this case. known to the defendant until about the 27th In the former case Judge Page referred to of January, 1911, it nowhere shows that the the allegations of the narr. that the appeldefendant, in the proper conduct of its busi- lant "entered into a written contract with ness, could not have discovered the mistake the appellee, by Rogers, Holloway & Co., before the loss occurred and before the agents of the appellees duly authorized by first trial of the case. The defendant no them to execute said contract in its behalf," doubt kept a record of all policies issued by and said: "The failure of the appellee to it; indeed, the plea alleges that it had what make denial of the execution of the contract was called a "policy register," and from that as set out in the declaration had the effect record, as well as from the application, only of relieving the appellant of proving which, according to the plea, contained a de- it, but it did not admit that Rogers, Holscription of the property insured, and which loway & Co. were the agents of the" appellee are retained by the company, the property "with authority to bind them as charged in covered by any policy could have been readi- the narr. That was put in issue by the pleas, ly ascertained. Admitting that Henry A. and was open for proof as any other fact Warburton did not notify the defendant of that had been alleged." In the latter case, the issuing of the duplicate policy, and even where the offer of the appellee to the apif we go further than the plea requires, and pellant was to buy "all the old material admit that the record of it made by him did which you have for sale," etc., the court not disclose that the policy sued on covered held that parol evidence was admissible to the main bridge, after the fire, which oc show what material was referred to. Here curred on the 5th of June, 1907, the defend- the evidence rejected was offered either for ant knew the plaintiff claimed that its policy the purpose of showing that the policy sued covered the property destroyed, and by ref- on had not been executed, or for the purerence to its papers and records would pose of contradicting the plain and unam |