| N.J. | Nov 15, 1897
The opinion of the court was delivered by
The only testimony offered to establish the contract sued upon was given by Rachel Fritz. Stated in narrative form, it is this :
“ Mr. Chambers came around again on the 26th of January and I told him that he would have it insured for $1,000. He said that I ought to have it insured for $1,500, and I told him I had not any more money but $8. Then lie told me I could go down to Vineland and pay the other $4.”
She states that this conversation took place on Saturday; that she paid Chambers the $8, and on the following Wednesday took $4 to Vineland, and gave it to Chambers, in Mr. Loughran’s office, and that Chambers then said to her that “ he,” using her language, “ would send the paper through the mail, or something like that, and that they were not ready for me, or something to that effect, and I came out, and in two weeks after I got the paper through the mail, and I never opened it; it was in a large envelope. * * * I put it in a sideboard drawer. I never even opened it. * * * Well, of course, the sideboard drawer was saved, and it was along with some other papers. I never opened it and never knew what was in it. * * * I had a lot of papers in tliere, not exactly that one paper or two papers, but it was a drawer that I always kept locked and kept the key, and, of course, ivhile the fire was raging, I got my daughter to go in and take this sideboard drawer out, and that is all that I
“Q. In the interview with Mr. Chambers did he tell you you would shortly receive a policy through the mail ?
“A. I don’t know what Mr. Chambers said at all. He said he wasn’t ready for me and he would send this paper through the mail.”
Mrs. Fritz does not, anywhere in her testimony, say that it was her purpose to' have a verbal contract of insurance.Nor does she say that she did not expect an insurance policy in writing, after the fashion of the two former policies. There is nothing in the language in which she states the negotiation she had with Chambers which is inconsistent with the assumption that she negotiated for future insurance, to be procured by Chambers. On the contrary, the import of the language used, and the interpretation given to the negotiation by the subsequent conduct of both Mrs. Fritz and Chambers, in that the latter announced that “ the paper ” should be sent through the mail, and the former failed to remonstrate that the insurance contract was already complete without writing, but without reply—in silent acquiescence in the fact that she was to have “ the paper ”—went away and afterwards accepted the policy, which came, as the insurance intended, and put it away with the valuable papers of the household, indicate with irresistible force that a written policy of insurance was that which was bargained for. And, whatever may have been the condition of Mrs. Fritz’s mind, it is clear that Chambers did not contemplate a verbal contract. When she handed him the $4, he apologized that “ they ” were not ready for her, and promised that “the paper” should be sent her by mail. We think that thé testimony of Mrs. Fritz will bear but one construction—that her mind and the mind of Chambers met in agreement that the contract of insurance negotiated for was to be expressed by “ the paper ” which should reach her by mail—and we think that the testimony does not prove that either she or Chambers intended or understood that they had
The contract being for a policy of insurance, it will be assumed that the form of policy intended was the form then used by the insuring company. Hubbard v. Hartford Fire Insurance Co., 33 Iowa 325; Smith v. State Insurance Co., 64 Iowa 716; De Grove v. Metropolitan Insurance Co., 61 N. Y. 594; Eureka Insurance Co. v. Robinson, 56 Pa. St. 256. Such was the form of the policy sent to Mrs. Fritz.
The-policy sent and accepted, as the result of the negotiation with Chambers, is with Rachel Fritz as the insured. So far as the evidence shows, it is the only contract that was made. It may possibly be that Mrs. Fritz intended that it should be made with her husband, or it may be that in view of her husband’s will, then executed, which provided that his entire property should, at his death, become hers, she conceived that she had an insurable interest, or it may be that the insertion of her name in the policy, instead of her husband’s, was a mistake. Whatever the truth may be in that respect, the fact remains that the only contract assented to by the company was with the wife.
We think that the contract declared upon was not proved.
Passing to the second ground for nonsuit or direction of the jury, an even more obvious error appears. There is not a particle of evidence that Chambers had power to bind the plaintiff in error-to a verbal insurance .contract. It is disclosed in the fact that he was accustomed to solicit insurance for the plaintiff in error, and in the fact that after his negotiation in the case of Fritz, a policy was issued in accordance with the conclusion reached between him and Mrs. Fritz, that he had some connection with that company. But there is no evidence to show that he could do more than solicit a contract-of insurance and submit to the company the proposition he should be able to procure. Proof of mere assumption of authority by him, without proof also of acquiescence by the company in the appearance he held, out, or of ratification by it of his acts, in pursuance of the power assumed, with knowl
The proofs do not show an agency in Chambers sufficiently general to justify an inference that he possessed authority to bind the plaintiff in error in the parol contract alleged. At best it makes him appear to have been a mere solicitor for insurance under the stipulations and conditions of the policy in use by the plaintiff in error.
It is impossible to infer from anything that appears in proof that he possessed power to disregard the carefully and maturely considered stipulations and conditions of the policy of insurance in use by the plaintiff in error, and make the ill-guarded, naked parol contract sued upon. De Grove v. Metropolitan Insurance Co., supra.
It is clear that the authority of Chambers to make the contract sued upon did not appear.
Because of the plain insufficiency of the proofs to establish the contract alleged in the declaration, the jury should have been controlled as the plaintiff in error requested. American Saw Co. v. First National Bank, 31 Vroom 417.
The judgment below will be reversed.
For affirmance—None,
For reversal—The Chancellor, Chief Justice, Collins, Depue, Dixon, Gummere, Ludlow, Van Syckel, Adams, Bogert, Hendrickson, Nixon, Vredenburgh. 13.