14 Colo. App. 354 | Colo. Ct. App. | 1900
Henry O. Morris was appointed an agent for this liability company on the 28th of June, 1893. During his agency he secured a policy from a smelting company in Pueblo, insuring their employees against accident and the premium on the policy amounted to some $3,200. In August, 1894, this policy was renewed. Intermediate the issue of the original contract and the renewal, the business officers and management of the company removed to Denver, and the matter of the renewal was conducted and concluded in the office of Harrison & Company who were the state agents of the corporation and by whom Morris was originally appointed. He demanded a payment of his commission on the renewal policy which was refused and this action is brought to recover it.
It is quite impossible to segregate the facts and state them as an entirety, regardless of the legal propositions with which they are almost inseparably connected, and the arguments which we shall use in support of our various positions. Departing then from the usual course in the construction of the opinion we will proceed to the first proposition to which we will direct our attention which respects Morris’s agency. This is very much disputed and the appellant has built up quite an argument on the proposition that an agency can exist only by agreement of parties and when in writing cannot be varied by parol proof, contending also, that wherever the contract of ageney is in writing it alone must be resorted to for the purpose of determining its terms and conditions, the obligations of the principal on the one hand, and the powers of the agent on the other. We quite concede this is the law; it has been too long settled to be the subject-matter of dispute or to require the citation of authority to support it. So far as respects Morris’s relation to the company, there was no opportunity for the application of these general rules of agency. This we gather from two circumstances. The first is the condition of the pleadings and the admissions to be found in them, and the second from the evidence which the company
We now come to another proposition about which counsel are strenuous, and that is the absence of authority in Harrison to appoint the agent and clothe him with due power. We are quite ready to concede it was part of the plaintiff’s case to show Harrison’s authority, and in the absence of proof of this power to make the contract set out, he would not be entitled to recover. By bringing the suit he assumed this burden, and must discharge it in order to succeed. It is probably true had the defendant rested when the plaintiff did, the plaintiff had not then made out a case and he could not have recovered. It is quite possible, however, for a defendant to aid the plaintiff in his proof and in such case the plaintiff can as well succeed on the strength of the case as made by all the testimony as by that made by his own. As already suggested the defendant produced the certificate of appointment and therefrom it appears there was no agreement or direction or contract with respect to Morris’s compensation. It was a naked appointment with authority to solicit subject to instructions. Further, when Harrison came on the stand he conceded his agency and his appointment, the company proved it by him, and the instant they offered Harrison as a witness and by him established that he had authority to appoint agents this would bar any further contest respecting the necessity for the plaintiff to prove Harrison’s authority to. make the agreement on which the plaintiff relied. Having shown by their own evidence that Harrison was the state agent with authority to appoint, and produced the appointment which contained nothing on the subject of compensation and left the whole matter open to instructions and directions, it necessarily followed the agent having-authority to appoint, must have authority to make some arrangement with reference to the compensation of the agent whom he appointed. It has been directly, adjudged that the power
At the oral argument it was suggested the question asked the witness respecting the details of his contract was objected to, and it was argued the contract being in writing no parol evidence of its contents could be given. We concede the law but we do not concede the fact respecting the record. It is quite true when the first questions were asked concerning it they were objected to, but subsequently, as appears from the bill of exceptions, though it is not stated'in the abstract, after these objections had been put and sustained, a general query was put as to the party with whom the contract was made and the terms of it. Witness was asked to state what the contract was. To this inquiry there was no objection, and it is therefore unavailing for the plaintiff to urge that the evidence should not have been received without a basis, to wit, the proof of a written appointment and the demonstration thereby that there was no provision in it respecting terms. The plaintiff was permitted without objection to testify what the contract was. The company pro
There are some other matters suggested in the briefs of counsel, which possibly, we would have noticed had they been insisted on during the oral argument. We do not regard them as of any significance or importance, nor do we think any one of them or all put together constitute reversible error, and under these circumstances we may be excused from taking the time essential to the formulation of an answer to them.
There are no errors in the record of sufficient weight to affect the validity of the judgment which will accordingly be affirmed.
Affirmed.