Majority
p. 597Charles Wall et al., Plaintiffs and Appellants, v. The Home Insurance Company of New York, Defendants and Respondents. (Before Bosworth, Ch. J., and Woodruff and White, J. J.) Heard, November 6; decided, November 30, 1861.
Headnote
It is not within the general powers of an agent of an insurance company for issuing policies and receiving the premium notes, to waive a stipulation contained in a policy issued by him, declaring that in case the note given for the premium should be not paid at maturity, the policy shall become void while the note remains unpaid, especially after a forfeiture of the policy has attached by the non-payment of the note.Appeal from a judgment entered on an order made at the trial dismissing the complaint.
This action was brought by Charles Wall, Samuel W. Truslow and William Wall, Jr., against the Home Insurance Company, upon a policy of insurance (for the sum of $4,000) for the term of one year commencing May 17,1858, issued by the defendants, upon the schooner Zenobia, on
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account of Charles T. Bruce, loss, if any, payable to the plaintiffs. The policy was issued on behalf of the defendants by David P. Dobbins, their agent, at Buffalo, where the schooner was owned and the insurance effected. The premium was paid by the note of Charles T. Bruce, indorsed by the plaintiffs, payable four months from May 17, 1858, and which became due during the life of the policy, and was not paid at maturity. While the note remained overdue and unpaid, and during the time for which the policy was issued, the vessel was lost, and this action was brought to recover the insurance money.
The policy contained, in the printed portion of it, a provision, that “ in case the note given for the premium be not paid at maturity, the policy becomes void while such note remains overdue and unpaid.”
There was some proof on the trial, that the defendant’s agent at Buffalo, after the note became overdue and unpaid, consented that it might lie for a few days.
The testimony was, that Elijah K. Bruce, acting on behalf of the schooner, applied to David P. Dobbins, the defendants’ agent at Buffalo, within a day after the -note matured, and asked Dobbins to wait for payment of the note until the Zenobia came home, “ a few days,” she being then at Chicago; that Dobbins said, in reply, that the note would be all right to lie over; that the Company would as soon have the interest as the money; that it would be no harm to wait a few days; that “it was all right enough for a few days.” And it was also testified, that Dobbins stated to a broker, who made inquiry upon the subject after the note'matured, that “it was just as well for everybody as it was.”
Within a few days after these alleged declarations of the agent, and while the note was yet unpaid’, the vessel was lost on her voyage homqward from Chicago.
The plaintiffs contended on the trial, that the above declarations of Dobbins amounted to a waiver of the stipulation in the policy, that it (the policy) should be void Awhile the note remained overdue and unpaid; and
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they attempted to show, that Dobbins, the defendants’ agent, had authority to make such waiver.
The defendants introduced proof contradicting the evidence given by the plaintiffs, both on the question of waiver, and on the alleged authority of Dobbins.
The action was tried before Mr. Justice Woodbubp and a Jury, on the 21st and 22d days of March, 1861.
Dp on the close of the testimony, the defendants moved to dismiss the complaint, upon the ground that neither a waiver, nor any authority in Dobbins to waive the forfeiture provided for in the policy, had been proved.
The Judge who presided at the trial granted the motion, and the plaintiffs, having excepted, bring the present appeal from, that decision.
J. M. Van Cott, for the plaintiffs, (appellants.)
I. The complaint should not have been dismissed. There was evidence, which should have been submitted to the Jury; (“ whether there be any evidence is a question for the Judge; whether there be sufficient evidence is a question for the Jury,” 24 How. U. S. R., 224 ; 4 Seld., 37 ;) and the appellants “are entitled to have every doubtful fact found in their favor.” (Colegrove v. N. Y. and N. H. Railroad Co., 20 N. Y. R., 492.)
1 D. P. Dobbins was the defendants’ general agent, to transact all their insurance business at their Buffalo agency. (Wilson v. Genesee Mutual Ins. Co., 14 N. Y. R., 418, 421.) His powers, as to such business, were as plenary as those of any executive officer at the home office in New York. (Com. Bank of Lake Erie v. Norton, 1 Hill, 501 ; 1 Am. Lead. Cases, 104, et seq. ; Pratt v. Hudson River R. R. Co., 21 N. Y. R., 305, 311 ; Prince of Wales Ins. Co. v. Harding, Manager, &c., 96 E. C. L. R., 183 ; Blackstock v. N. Y. and Erie R. R. Co., 20 N. Y. R., 52 ; Rourke v. Story, 4 E. D. Smith, 54 ; United States v. Hudson, 3 McLean, 156 ; Livingston v. Radcliff, 6 Barb., 204 ; Smith v. McGuire, 3 Hurlst. & Norman, 554 ; Liddle v. Market Fire Ins. Co., 4 Bosw., 179 ; Taylor v. Nuss
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baum, 2 Duer, 302 ; N. Y. Central Ins. Co. v. National Protection Ins. Co., 20 Barb., 468 ; Dows v. Greene, 16 Id., 72 ; Wilson v. Genesee Mut. Ins. Co., Id., 511, 513 , 14 N. Y. R., 418 ; Johnson v. Jones, 4 Barb., 369 ; Sexton v. Montgomery County Mut. Ins. Co., 9 Id., 191 ; Perkins v. Washington Ins. Co., 4 Cow., 645 ; McEwen v. Montgomery County Mut. Ins. Co., 5 Hill, 101 ; Lightbody v. North Am. Ins. Co., 23 Wend., 22 ; Wing v. Harvey, 27 Eng. L. & E , 140 ; Brocklebank v. Sugrue, 5 Carr & P., 21 ; Campbell v. International Life Ins. Co., 4 Bosw., 298 , 310, 311 ; Leeds v. Mech. Ins. Co., 4 Seld., 351 ; Baptist Church v. Brooklyn Fire Ins. Co., 19 N. Y. R., 305 ; Ames v. N. Y. Union Ins. Co., 14 Id., 254 ; Benjamin v. Saratoga County Mutual Ins. Co., 17 Id., 415 ; Goit v. National Protection Ins. Co., 25 Barb., 190 ; Whittaker v. Farmers’ Union Ins. Co., 29 Id., 312 ; Story on Agency, §§ 53, 85, 106, 110, 126 ; Boehm v. Williamsburgh City F. Ins. Co., MS.)
•2. The agent agreed to extend the time for paying the premium.
3. That it was proved to.be usual to take renewal notes does not vary the case.
The very form of the note seems to imply a usage to extend the time of payment, and at varying rates of interest.
4. It is no objection that the extension was without ■ consideration. (Cornish v. Abington, 4 Hurls. & Norm., 549 ; Young v. Hunter, 2 Seld., 203 ; Conkling v. King, 6 Seld., 440.)
Dobbins having exercised the power in this particular manner, the Company is estopped to allege any secret limitation of the power, as to manner and form. Exercising the power in this mode was equivalent to a declaration that this mode was not excluded from the power; and it would be a fraud upon the insured to permit the declaration to be retracted. (Plumb v. Cattaraugus Mut. Ins. Co., 18 N. Y. R., 392.)
If the time had not been extended, the premium would have been paid, or the vessel would not have left port
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uninsured. (Bank of Vergennes v. Warren, 7 Hill, 91 ; Conover v. Mut. Ins. Co., 1 Comst., 292.)
6. The Court erred in excluding evidence of the customary powers of insurance agents in Buffalo. (1 Am. L. Cases, 400, et seq. ; Story on Ag., § 106.)
II. Upon the defendants’ construction, the condition is void. It is repugnant to the general object and scope of the contract of insurance, and is against public policy.
And it is extortionate to enforce the entire contract on one side, and discharge its entire obligation upon the other.
III. If not absolutely void, the condition should be construed with great strictness; and merely suspends the right of action during default, and payment or tender restores it. (Jube v. Brooklyn Fire Ins. Co., 28 Barb., 412 .)
William Allen Butler, for defendants, (respondents.)
I. The condition in the policy was valid; and upon the non-payment of the note, the defendants’ risk as insurers ceased and was suspended, without impairing their claim upon the maker and indorsers of the note for its whole amount. (Beadle v. Chenango County Mut. Ins. Co., 3 Hill, 161 ; Neely v. Onondaga County Mut. Ins. Co., 7 Hill, 49 .)
II. There was no evidence that the defendants ever waived this condition, or varied the terms of the policy.
1. Dobbins had no authority to waive it. It was not within the scope of his agency.
The authority could only be implied from similar action by the agent in other prior cases, sanctioned of acquiesced in by the defendants, (Stephenson v. N. Y. and Harlem R. R. Co., 2 Duer, 341 ; Wilson v. Genesee Mut. Ins. Co., 4 Kern., 418 ; Bunten v. Orient Mut. Ins. Co., 4 Bosw., 254 ,) and the evidence did not disclose a single such instance.
2. The cases relied on by plaintiffs’ Counsel, are all cases in which the agent’s authority was clearly deducible from the scope of his employment, or in which his acts became binding by the ratification or acquiesence of the principal, and in which his exercise of the implied authority was clearly proved. (See Perkins v. Washington Co., 4 Cow.,
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645 ; Lightbody v. North American Co., 23 Wend., 22 ; McEwen v. The Montgomery Co., 5 Hill, 101 ; Wilson v. Genesee Co., 16 Barb., 511 ; Sexton v. Montgomery Co., 9 Barb., 191 ; Leeds v. Mechanics’ Co., 4 Seld., 351 ; Ames v. New York Co., 14 N. Y. R., 254 ; Benjamin v. Saratoga Co., 17 Id., 415 ; Quimby v. Vanderbilt, Id., 312 ; Baptist Church v. Brooklyn Fire Ins. Co., 19 Id., 305 .
III. There was no request to submit to the Jury any question arising on the offer to pay the premium note after the loss, and no exception taken.
I think the learned Judge was right in the disposition made by him of the cause at the trial.
There is nothing in the plaintiffs’ testimony which shows that Dobbins had any authority to vary contracts made by the defendants, or to waive any condition in any policy issued by them.
■ Certainly he had no authority to waive this important stipulation in the policy, forfeiting it, or suspending its obligations while the assured were in default upon their part; and especially he had no such authority after the forfeiture had attached, and the policy had become, for the time being, an absolute nullity.
The testimony introduced on the part of the defendants, only tended to strengthen and confirm the view of the case presented by the plaintiffs’ evidence. There was no conflicting testimony upon any material question.
The judgment should, therefore, be affirmed, with costs.