26 Or. 199 | Or. | 1894
Opinion by
1. Numerous assignments of error are made in the notice of appeal, but we shall only consider those which relate to the pleadings. The defendants, after denying the material allegations of the complaint, in substance alleged that upon receipt of plaintiff’s notice to cancel said policy they fully set forth all the facts concerning the risk to another insurance company, which by its officers directed and authorized the defendants, who were also agents of said company, to write a policy upon said vinegar factory for the sum of one thousand dollars, in lieu of plaintiff’s policy, and deliver it to the assured, to take effect from twelve o’clock noon of the day when said factory burned; that they represented the assured, and had authority to secure and accept said insurance in lieu of plaintiff’s policy; that they proceeded to the writing of said policy, to take effect as agreed upon, but before they had time to exchange it for plaintiff’s policy the fire occurred; that they had effected an oral insurance with said other company in lieu of the insurance under plaintiff’s policy, and had authority
2. It remains to be seen whether a person representing the assured can make a valid contract of insurance through an agent of the company of which he is also an agent. No agent will ever be permitted to take upon himself incompatible duties and characters, or to act in any matter where he has an adverse interest or employment (Story on Agency, § 9); nor can any person, without their knowledge and consent, be the agent of both parties to the same transaction: New York Central Insurance Company v. National Protection Insurance Company, 14 N. Y. 85; Mercantile Mutual Insurance Company v. Hope Insurance Company, 8 Mo. App. 408; Utica Insurance Company v. Toledo Insurance Company, 17 Barb. 132. A contract made by an individual as the agent of both parties is not void, but voidable only at the election of either principal, if made within a reasonable time: Greenwood v. Spring, 54 Barb. 375. There can be no meeting and agreement of the minds of the contracting parties when represented by the same individual without the±r knowledge and consent, and hence
In Northrup v. Germania Insurance Company, 48 Wis. 420, 33 Am. Rep. 815, it appeared that one Edwards, the general agent of the defendant company, had been occasionally employed to collect rent, pay taxes on, and find purchasers for, certain portions of plaintiff's real property, and that the key to one of his buildings had been delivered to Edwards, who had been instructed to guard the property, and insure the building in the company he
Reversed.