67 Vt. 609 | Vt. | 1895
That Morse was the defendant’s agent could! not be proven by his declarations and acts, unknown to the defendant. Whether he was such agent or not, in this case, was a1 preliminary question addressed to the court. Cairnes v. Mooney, 62 Vt. 172. The testimony to show the agency of Morse was admitted under exception ; it is referred to and is from the witnesses, Tarbell, Whitham and the plaintiff. The property of the plaintiff was insured in three companies, and Tarbell testified that Morse left some blank proofs of loss of one company and was to send those for the other companies afterwards; whether he ever did or not the witness had no memory. The utmost that can be claimed from the testimony of Tarbell is that Morse agreed to send some blanks, for proof of loss in the defendant company. Whitham testified' that Morse left blank proofs of loss of the defendant, with instructions to hold them, when executed, until further advised* “ or something to that effect.” That after such instructions neither he nor Tarbell, who was his partner, had any correspondence with the defendant, and that he did not ‘ ‘ remember that there was anything further done about that proof of loss; the inquest came on, and the proceedings were delayed until that terminated.” It does not appear that the blanks so> furnished were ever filled out and executed. The contrary may be inferred from the testimony. The defendant testified that Morse said “he was agent for the Fitchburg and Quincy,” and further testified, “ I think he is treasurer for the Quincy
There being no testimony in the record tending to show Morse’s agency, his admissions and declarations were not admissible upon'the main question, and notice to him of the concurrent insui'ance was not notice to the defendant of that fact. This was a material fact; indeed, it was the pivotal point in the case, for in no other way did the plaintiff attempt to avoid the defect in the proofs, of not truly stating the concurrent insurance. Had the defendant notice of the defect, it was its duty to have returned the proofs for correction. The admission of this testimony was vigorously contested; eight times was the objection made with as many, save one, exceptions, the counsel contending, “It is not shown that Morse is an agent of this company.”
The defendant excepted to that pox'tion of the charge relating to the care and exertion the plaintiff ought to have exercised and employed in the saving of his goods ; the exception was general and to the whole charge on that subject. No specific error was pointed out. To entitle the defendant to a reversal under so general an exception, it must appear that the whole portion of the charge so excepted to was erroneous. The charge in the main was cori’ect. The jury were told that it was the plaintiff’s duty to make reasonable exertion to save his goods after he ought to have believed they would be burned or exposed to be burned; to act like a reasonable, prudent, and careful man ; to save as much as he could ; to make
Judgment reversed and cause remanded.