116 Mass. 321 | Mass. | 1874
The question raised by this report is whether there was any evidence upon which the jury would have a right to find that the premium due from the assured on the ninth day of February, 1871, was paid according to the terms of the policy. Even upon the assumption that Osborn, as the defendants’ agent, had no authority to waive or modify those terms in any respect, a seasonable payment to him was all that it was necessary for the plaintiff to prove. He was .the agent of the corporation, not merely for this special transaction, but generally, for the collection of all premiums that became due to them within a certain territory ; and whatever money came to his hands in this way he was undoubtedly to hold in trust, as a distinct fund; but he held it as an accounting agent, and not as a clerk or messenger of the defendants. The mode of accounting, as pointed out in the contract by which he was appointed, was not by forwarding the specific and identical money which he from time to time received in that capacity; but after reserving out of it the commission which was to be the compensation for his services, by investing the re
It appears from the report that he charged himself, in his return to the defendants, with the premium in question, and included it in the certified check with which, according to his regular practice, he had undertaken to pay the balance apparently due to them. The amount of the premium, therefore, actually came into their hands in regular course of business; but on the ground that it was not seasonably paid to their agent they have repaid it to him, and now insist that it was not paid by the assured in conformity to the terms of the policy.
The evidence reported had a tendency to show that a few days before the premium became payable, Osborn had funds in his hands, belonging to the firm of Chickering & Sons, to an amount largely exceeding the premium. He had been the agent of that firm for the sale of pianos, and in that capacity had made sales, and collected the proceeds of these sales. Whatever money he had collected in that way came to his hands as their agent, and he held it in trust for them. The funds in his hands were substantially their funds, and they had a right to direct to what uses they should be applied.
No question is raised by the defendants as to the right of the assured to pay his own personal debt from the funds of the firm. It appears that such a proceeding was in accordance with the ordinary practice of the partners, and that it had been the habit of the assured to pay the premiums on this policy, as they became due, in that very manner.
It is not contended that the fact, that the premium had become due, was forgotten by the assured, or that the necessity of prompt and punctual payment was overlooked. It is clear on the evidence that an arrangement of some sort was proposed and discussed for the purpose of meeting that necessity, and the jury might have found from the evidence that Chickering not only relied upon that arrangement, but had every assurance that it had been carried into effect. If there were funds actually in the hands of Osborn belonging to the firm, and which he was ready at any moment to pay to the assured, and which the assured had an absolute right to control, that control might as well be exercised
It is objected that the effect of such an arrangement would be to render Osborn a debtor to the corporation without their consent; but it is difficult to see how it could have any effect in that respect, to distinguish it from a payment in any other mode. If it were an actual placing of money in the hands of their agent, it would add to the fund which he held in trust for the defendants, and would not make him their debtor in any other capacity or mode.
There was evidence, also, as to a declaration of Osborn, at about that time, that money had come into his possession exceeding the premium by thirty dollars — a declaration having a tendency to-show a specific application of the money by him to that precise purpose. And there was also evidence, not contradicted, that the customary receipt, as a voucher of the payment, had come to his hands in the regular course of business; and although it had not been delivered by him to the assured, that fact was explained by his testimony that he retained it only as a voucher for his own account with the firm.
It is manifest also that in rendering his account to the defendants, he included this premium in the balance which he undertook to pay by the “ certified check or draft, payable in New York,”_ required by his contract with them; and although this was not done with literal punctuality as to time, whatever delay occurred was consented to by the defendants.
The evidence was sufficient to warrant the jury in finding that funds which the assured had a right to control, and apply to the payment of the premium, had come into the hands of the defendants’ agent before the premium became due; that the assured directed that the agent should apply so much of said funds as was necessary to that payment, and that the agent did so apply it. Such facts would show a payment of the premium, within the meaning of the policy.
According to the terms of the report, therefore, there must be
Judgment for the plaintiff.