p. 150Appeal by the defendant, Mutual Reserve Fund Life Association, from a judgment of the County Court of Rensselaer county in favor of the plaintiff, entered in the office of the cleric of the county of Rensselaer on the 23d day of November, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20th1 day of November, 1901, denying the defendant’s motion for a new trial made upon the minutes.
The action originated in the City Court of Troy, where a verdict was rendered in favor of the plaintiff. An appeal was taken by the defendant to the County Court where a new trial was had.
Warren MoGonihe, for the appellant.
John P. Taylor and John B. Holmes, for the respondent.
The complaint in this case alleges a cause of action for services in the capacity of solicitor for life insurance performed and to be paid for “ according to- the terms of a certain agreement made between the said plaintiff and the executive committee of the said defendant.” At the commencement of the trial plaintiff introduced in evidence two contracts in writing made by him with such executive committee, which covered the whole subject of employment and pay therefor. It became apparent from his own testimony that he had not performed as the contracts contemplated, and that defendant owed him nothing. The plaintiff then Undertook, without change in the complaint, to establish an oral contract for services made with one Kellogg, an agent of the company, for soliciting insurance, and who exercised the functions of a supervisor of other agents, inspecting their work and reporting to the company the results of such inspection. The defendant objected to this attempt to prove a new contract as “ not within the issues and pleadings; ” also that there was no proof of authority in agent Kellogg to bind the company by such a contract. But the learned court overruled the objection and allowed the proof, and on this proof the recovery was based, the court charging the jury that plaintiff had no cause of action under the written contracts. This was error and-sufficient cause for the reversal of this judgment. No proof of such a contract could be made without its being first alleged in the complaint. No con
p. 151versation with agent Kellogg, which could be interpreted into a contract, was permissible until it was first shown that this agent was authorized by the company to make a new contract or modify the old one. No such proof was offered. The letter of the defendant advising that Mr. Kellogg would be in Troy was not produced. The person to whom it was sent was called by plaintiff and testified:
“ I received a reply to my letter. Q. Have you that reply here ? A. No, sir, I have not. Q. Have you looked for it ? A. I don’t know that I have.” He further says that he was not able to find it and that probably in the lapse of time it got lost, but not having looked - for it it is quite probable that he was not able to find it otherwise but no probability arises that it was lost. The court, notwithstanding the -objection of defendant, permitted the witness to give the contents -of this letter as showing authority in agent Kellogg, to make the new contract or modify the old one. This was error which also requires a reversal of this judgment. The witness Kellogg testified that he had no authority from the company, general or specific, to make the alleged modification or to make any new contract, and his testimony should have been taken as conclusive as the case stood at its close. The learned trial court also admitted over defendant’s objection many conversations between plaintiff and one Beaton, another soliciting agent of the company. There is not any proof that this agent was authorized to speak for defendant. The power of this agent was in writing and in evidence. So far as such conversations had a bearing upon the liability of defendant to plaintiff or tended to establish such a liability otherwise than as fixed by the written contracts they were inadmissible.
The motion for a nonsuit should have been granted.
The judgment is reversed, with costs of this appeal and costs in the Oounty Court and City Court, and a new trial is granted in the 'City Court of Troy; order to be settled by Fubsman, J.
All concurred.
Judgment and order reversed on law and facts, with costs of this appeal and costs in the County Court and City Court to the. appellant and new trial granted in the City Court of Troy; order to be settled by Füesman, J.