69 Vt. 549 | Vt. | 1897
The trustees were the agents of the defendant company, with power to receive proposals for insurance, to fix rates of premiums, to receive moneys, and to issue policies and consent to their transfer. The policy used by the company contained provisions for its cancellation, and for a return of the unearned portion of the premium. In the transaction of their business, the agents sometimes found it necessary to guarantee the solvency of the company and the repayment of premiums in the event
It is held in this State that a trustee cannot be allowed amounts which he has paid out, or become chargeable for, on agreements not binding upon him because of the statute of frauds. Hazeltine v. Page, 4 Vt. 49; Strong v. Mitchell, 19 Vt. 644. So it becomes necessary to determine whether these promises were original or collateral undertakings. It has recently been said, upon a review of the cases involving this question, that both the English and American authorities are hopelessly in conflict, and that it can scarcely be said that any construction of the statutory provision on which the question arises is settled law. 95 Am. Dec. 251 note. This being the condition of the law, there is little inducement to depart from the decisions of our own State.
It is clear that there were two promises in this case, and that the second was not made original by an abandonment of the first. The liability of the company was contemplated by the arrangement, and its promise was tendered and taken with that of the agents. It is doubtless true that the main purpose-of the agents was not to procure a benefit for the company, but to subserve a business interest of
k question is raised as to what the trustees are entitled to retain on account of their services. They were to have twenty per cent, of the moneys received by them on account of premiums actually paid. We think this refers to the money received in regular course, and not to a balance determined by future cancellations. This view seems to be supported by the use of the same phrase in the cancellation clause of the policy, which refers to the contingency of cancellation, “the premium having been actually paid.”
Judgment affirmed.