42 Ga. App. 49 | Ga. Ct. App. | 1930
(After stating the foregoing facts.)
1. The defendants agreed “to return to the -company all unearned commissions on premiums on cancelled policies,” and that the agency could “be terminated at any time at the pleasure” of the company. There was no ambiguity in the last statement and the plaintiff can not be denied a recovery upon any ground relating to its right to terminate the agency and withdraw from “farm business” in Stephens County; but the question of what were “unearned commissions on premiums on cancelled policies” is an entirely different matter, and is one that is involved in ambiguity under the terms of the agency contract. To speak of unearned commissions is to imply that there may also be earned commissions, and the necessity of an explanation as to the meaning of the former expression is instantly suggested by a reading of the contract. Even if the phrase “unearned premium” might be the subject of judicial definition, the same would not necessarily be true of the expression “unearned commissions.” Thus, if the contract had simply called for the return of commissions on unearned premiums, or of commissions on cancelled policies, the case would be stronger for the plaintiff, and might perhaps be clear of ambiguity; but since the contract is entirely silent as to the rate or conditions of the compensation to be allowed to the agents, and contains nothing to show what are earned commissions, there was a patent incompleteness or uncertainty as to what were unearned commissions.
The plaintiff contracted with the defendants for services to be performed by them in the capacity of agents, and yet, in the very elaborate writings, including a solicitor's agreement of many promises and stipulations, followed by a formal commission or appointment, there is no statement as to the compensation or consideration to be allowed for such services, except in the few and meager expressions which we have quoted above in this opinion or in the statement which precedes it. How were the defendants to be paid ? What was the percentage of the premium to be allowed to them, if they were to be paid on this basis ? If the percentage was high, the defendants might have agreed to conditions and burdens which would be entirely unsatisfactory if the rate were lower. Both the company and the agents might reasonably have agreed, either upon a rate of compensation that would be low if unconditional, or high if subject to some condition favorable to the company, as that in case the policy was cancelled and a portion of the premium refunded to the insured the agents would return to the company a proportional part of the commissions received. The answer alleges that the policies were expected to be written for a period of five years each, and that the premiums were payable one fifth cash, with the remainder to be paid in four equal annual installments. The courts can not say as a matter of law whether an unconditional commission of 20 per cent, would be reasonable or unreasonable, and this court can not take judicial cognizance of terms and conditions upon which insurance companies employ their local agents. In view of the very inadequate references to the subject of compensation in the contract before us, it certainly could not be said by this court that the parol agreement pleaded by the defendants was inconsistent with the writing. Cf. Napier v. Pool, 39 Ga. App. 187 (2) (146 S. E. 783); Renfroe v. Alden, 164 Ga. 77 (137 S. E. 831).
The answer shows that George B. Cooper was a special agent, but it does not disclose the extent of his authority. So far as appears, he may have been a special agent to employ local agents; and if so, he acted within the scope of his employment in making the agreement set forth in the defendants’ plea. There is nothing in the petition or in the answer to negative this fact; and the answer, even though by implication, sufficiently alleged such authority, as against a general demurrer. Ryle v. Central of Georgia Ry. Co., 30 Ga. App. 737 (4) (119 S. E. 342); Yellow Cab Co. v. General Lumber Co., 35 Ga. App. 620 (134 S. E. 190). The answer with the amendments set forth a valid defense, and it was therefore proper to overrule the general demurrers. • We defer for the present any discussion of the special demurrers. Some reference should be made to the cases cited from other jurisdictions in the very able and painstaking brief of counsel for the plaintiff in error.
In Hill v. Ætna Ins. Co., 180 Ark. 401 (21 S. W. (2d) 180), an agent agreed to return “any unearned commission paid him on that part of the premium returned to the assured on such can-celled policy or the application for same.” But in that case the contention of the agent was merely that he was not liable for a refund of commissions until the unearned portion of the premium had been returned to the insured, it being admitted that if the company had returned the premiums to the insured the agent would have to return any unearned commissions. In Stone v. Hartford Fire Ins. Co., 231 Ky. 264 (21 S. W. (2d) 281), the writings were substantially identical with those involved in the present case; but the chief contention of the agent was that the solicitor’s agreement, properly interpreted, did not provide for the general cancellation of policies issued by the insurer on applications which the agent had procured. The court said that “the agreement is not ambiguous, and requires no extraneous evidence to explain its terms,” and
In National Union Fire Ins. Co. v. Nevils, 217 Mo. App. 630 (274 S. W. 503), the decision contains a discussion upon the subject of unearned commissions on cancelled policies, and much of the language would seem, on a casual reading, to support the position of the present plaintiff in error. In that connection, however, the court was considering the question whether the provisions of the bond sued on were such as to include a liability for unearned commissions, the bond being for “all amounts due or that may become due to it from time to time for moneys collected or received by him for premiums on policies of insurance and renewals thereof, or for any ground whatever.” We do not think that the reasoning employed by the court to determine whether such language of the bond was sufficient to cover a liability for unearned commissions on cancelled policies should be taken even as persuasive authority upon the entirely different question as to whether a particular contract manifests such an ambiguity or incompleteness as to permit the pleading and proof of a parol agreement as to when commissions would be earned. Other cases cited by counsel are not so nearly in point as those above mentioned, and it is unnecessary to make reference to them.
2. Did the evidence support the allegations of the defendants’ plea? The bond, the provisions of which were quoted in the statement, should be considered as part and parcel of the agency contract, since it was simultaneously executed and was one of the conditions of the defendants’ appointment. Gilford v. Green, 33 Ga. App. 1 (125 S. E. 80). However, by a reference to its terms it is seen that it sheds no greater light upon the meaning of the expression “unearned commissions” than is gained from the writ
The extent of an agent’s authority is not determined by the title affixed to his name. One may be called a special agent, and yet be given the broadest powers. If a person imposes upon another the duties and responsibilities involving the management and control of a matter of business, the agent will be presumed to have authority to represent his employer in any matter within the scope of his apparent authority. Pickens Co. v. Thomas, 152 Ga. 648 (111 S. E. 27, 21 A. L. R. 1438); Raleigh & Gaston R. Co. v. Pullman Co., 122 Ga. 700 (4) (50 S. E. 1008); Hargrove v. Armour Fertilizer Works, 31 Ga. App. 465 (2) (120 S. E. 800). In Langston v. Postal Telegraph-Cable Co., 6 Ga. App. 833, 834 (65 S. E. 1094), it was said that “the mere designation by which an agent is known is not conclusive of the extent of his authority, . . and the test is what duties are performed by the agent and what authority he is held out to the' public to have.” While it is provided in the Civil Code, § 3595, that “in special agencies for a particular purpose, persons dealing with the agent should ex
It is further insisted that the evidence shows without dispute that the words “unearned commissions” are technical words connected with a particular trade, and that the expression means that part of the commission which “bears the same proportion or ratio to the
We have found nothing in the brief or argument of counsel for the plaintiff in error which could be taken as an insistence upon the special grounds of the demurrers; but whether these grounds have been waived, and whether any of them had been well taken, or not, the judgment will not be reversed because of the rulings thereon. They related in the main to the sufficiency of the allegations as to the authority of Cooper; and whether or not the pleadings were of sufficient particularity as to that matter, the issue as to his authority was thoroughly investigated upon the trial, and apparently all facts material thereto were fully developed by the evidence. Therefore the plaintiff was not finally harmed by error, if any, which the trial court may have committed in ruling upon the demurrers in regard to this question. Fidelity & Deposit Co. v. Norwood, 38 Ga. App. 534 (144 S. E. 387); Benton v. Roberts, 41 Ga. App. 189 (152 S. E. 141).
Judgment affirmed.