Appeal from the District Court of the United States for the Northern Division of the Western District of Washington; Jeremiah Neterer, Judge.

Suit in equity by the American Merchant Marine Insurance Company of New York against H. G. Tremaine, S. D. Buckley, and John. Doe Buckley, partners as the Buckley-Tremaine Dumber Company. From a decree dismissing the bill, complainant appeals.

The court below dismissed the bill brought by the appellant to reform a policy of marine insurance. The complaint alleged that on October 3, 1919, •the appellees made written application to the appellant for insurance on certain lumber while on a scow in tow of a tug from Craig, Alaska, to Prince Rupert, B. C., and thence in double tow of approved tug to Seattle, Wash., voyage actually to commence in October, 1919, and that the appellant insured the lumber in the sum of $4,875 for the voyage so set forth, and indorsed on the application its written acceptance in that sum; that on October 6, 1919, the appellant executed and delivered to the appellees its certificate of insurance in the usual form, which the appellees accepted in substitution of the “cover note” in accordance with custom and usage; that in drafting the certificate the scrivener employed by the appellant, by accident and mistake, failed to incorporate therein the provision in the cover note to the effect that the voyage described should commence during the month of October, 1919, and that without knowledge of that omission, and believing that the certificate of insurance did in fact contain all the provisions of the cover note, the appellant’s agent by accident and mistake signed the certificate and caused it to be delivered; that the appellees, also believing that the certificate did in fact contain the said omitted provision, accepted the said certificate, or, having knowledge of the omission and of the accident and mistake, they neglected to disclose the fact of the omission to the appellant; that the provision omitted was a material and express warranty materially affecting the risk, and that the contract should be reformed so as to express the agreement between the parties.

The appellees moved to dismiss. The motion was allowed, on the ground that, the contract having been entered into in the state of Washington, reformation of the instrument was forbidden by the Insurance Code of that state (Rem. Code 1915, § 6059—31; Laws 1911, p. 195, § 31), which provides: “livery contract of insurance shall bo construed according to the terms and conditions of the policy, except where the contract is made pursuant to a ■written application therefor, and such written application is intended to bo made a part of the insurance contract, and the insurance company making such insurance contract, unless as otherwise provided by this act, shall deliver a copy of such application with the policy to the assured, and thereupon such application shall become a part of the insurance contract, and failing so to do it shall not be made a part of the insurance contract.”