Levitt v. Prudential Life Insurance — 39 N.Y. St. Rep. 91

Majority

p. 91

Philip Levitt, Resp’t, v. The Prudential Life Insurance Company, App’lt.

(New York Common Pleas, General Term,

Filed June 1, 1891.)

Headnote

Principal and agent—Insurance—Liability of agent for premiums.

Plaintiff deposited with defendant fifty dollars as security for the faithful performance of his duty as an agent of defendant, and entered into an agreement “that on Monday of each week, I (the plaintiff), am to he debited with the amount of the weekly premiums shown on the Life Policy Register, less the total amount of the weekly premiums shown on policies entered on the lapsed policy register for that week, and it is agreed that the company is not bound to prove that I have received the premium from each particular policy holder, but that the amount so shown shall he considered"as being absolutely received by me on behalf of the company.” In an action to recover the deposit it was shown that the premiums for lapsed policies which had been in the plaintiff’s hands for collection amounted to $67.43. Held, that under the agreement, plaintiff was either liable for the whole of this amount or none, and that it not appearing that the policies given to him for collection were known by the company to he incapable of collection, he is bound by the agreement, and the whole amount uncollected should have been allowed the defendant.

Appeal from a judgment of the district court in the city of New York, for the fourth judicial district.

W. O. Campbell, for app’lt; S. Mullen, for resp’t.

—This action was brought to recover fifty dollars deposited with the defendant as security for the faithful performance of his duty, by the plaintiff as an agent of the defendant, and for work, labor and services, amounting in all to $58.85. The answer was a general denial, and a counterclaim for $118. There is no substantial dispute about the facts in this case. When the plaintiff was appointed an agent of the defendant he deposited the sum of fifty dollars with the Howard Savings Institution of Newark, New Jersey, in the name of both parties. It was agreed between them that in the event of a deficiency, for any cause, in the plaintiff’s account, as agent, the amount deposited with all additions made by the way of interest or dividends, or such portion thereof as might equal the amonut of the deficiency, might be withdrawn by the company from the savings institution and retained by it for the payment of such deficiency, the surplus if any, to be paid to the plaintiff.

When the plaintiff entered into the employment of the defendant, a printed agreement was executed between them, the seventh clause of which provides, “ that on Monday of each week, I (the plaintiff) am to be debited with the amount of the weekly premiums shown on the life policy register, less the total amount of the weekly premiums shown, on policies entered in the lapsed policy register for that week, and it is agreed that the company is not bound to prove that I have received the premium from each particular policy holder, but that the amount so shown shall be considered as being absolutely received by me on behalf of the company.”

On the trial it was shown without contradiction, that the premiums for lapsed policies which had been in the plaintiff’s hands

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for collection, amounted to $67.43. The justice has apparently-allowed for only a portion of this, and not for the whole amount. We think, under the terms of the provision of the agreement above set forth, either the whole of this amount, or none of it, should have been allowed, as the testimony makes no distinction as to any of it, and the plaintiff was liable to the defendant for the whole or none.

There is nothing in the evidence to show that this agreement was obtained through any fraud, false representations or duress on the part of the defendant On the contrary, it appears that he voluntarily entered into the agreement. It does not appear that he was ignorant of its terms or the effect of those terms, nor was it shown on the trial that the policies given to him for collection were known to the company to be incapable of collection, or that any fraud or imposition was practiced upon him in respect thereto.

Under these circumstances, we think the plaintiff is bound by the agreement which he made, and under the proof given upon the trial, the whole amount uncollected should have been allowed the defendant. The exhibits offered in evidence by the defendant being memoranda made by the plaintiff, are in the nature of accounts stated as between the agent and the company, and they were properly received in evidence without objection. Metropolitan Life. Ins. Co v. Callan, 23 N. Y. State Rep., 629.

The judgment should, therefore, be reversed and a new trial ordered, with costs to abide the event,

Bischoff, J , concurs.