147 S.W. 625 | Tex. App. | 1912
In support of its assignment complaining of the action of the court in refusing its request to peremptorily instruct the jury to find in its favor, appellant insists: (1) That, as to the agreement between Adams and Hirsch, it did not appear that Hirsch as its agent was authorized to make it; and if it did so appear, it also appeared that the policy sued on, if issued in accordance with such agreement, was issued without the consent or knowledge of appellee. (2) That it appeared that Adams was not authorized as appellee's agent to procure the issuance of the policy, and as he *628 therefore in procuring its issuance did not bind appellee, there was a lack of mutuality necessary to make the contract binding on it. (3) That if it did appear that Adams was appellee's agent for such a purpose and acted for him in the transaction, it also appeared that he acted therein as its agent, without knowledge on its part that he was acting for appellee also, and further appeared that as soon as it learned that Adams had acted in the transaction for both it and appellee, it bad repudiated his act in its behalf. (4) That it appeared that the premium due on tie policy had never been paid.
As noted in the statement above, Adams testified that after appellant's general agents had been advised by him that ne wished to place a portion of the Farmers' Merchants' Company's risks in appellant and other companies represented by said general agents as such, and had requested said agents to send him blank policies for the purpose, and after said agents had advised him that they would send a "special agent to inspect and assist," Hirsch appeared with the blanks, announced they were to "take the Farmers' Merchants' risks," and then during several days remained in Adams' office inspecting policies. As further noted in said statement, Adams testified that he thereafterwards, in accordance with the agreement with Hirsch, as appellant's agent, issued policies other than the one sued on, covering risks carried by the Farmers' Merchants' Company, reported same to appellant, and that his right to do so in those instances had never been questioned by appellant. This testimony, we think, was sufficient to support a finding that Hirsch as appellant's agent had authority to bind it by the agreement, as claimed with Adams, authorizing him to issue appellant's policies to cover risks carried by the Farmers' Merchants' Company, and requiring it to look to Adams alone for payment of premiums on policies so issued. It would seem that Hirsch was sent by appellant's general agents for the specific purpose of arranging with Adams to take over the Farmers' Merchants' Company's risks. Making the agreement with Adams whereby, as appellee contended, Adams was authorized to issue appellant's policies to cover those risks, and whereby appellant was to look to Adams for payment of the premiums on the policies so issued, it seems to us should be said to have been fairly within the scope of the business Hirsch was sent to transact for appellant. 1 Clark Skyles' Law of Agency, § 204. Hence we conclude that there was testimony sufficient to support a finding that appellant was bound by the agreement Hirsch made with Adams.
If it was, and if, as a jury might have found, the policy sued on was issued in accordance with that agreement, that it was issued without appellee's knowledge we think did not furnish a satisfactory reason why he should have been denied a recovery on it. He had requested Adams to keep the house insured, and Adams had agreed to do so. If Adams agreed to act for him and did act for him, that appellee did not know he had acted for him we think was of no, importance.
Nor do we think there is merit in appellant's contention that it should have been relieved of liability on the contract because it appeared it had repudiated Adams' act in issuing the policy as soon as it learned that while acting as its agent in the transaction he also acted therein as appellee's agent. At the time Hirsch made the agreement with Adams, it appeared from the testimony that Hirsch was advised by Adams that he expected to act in the matter of rewriting the Farmers' Merchants' Company's risks without the knowledge or consent of the holders of the policies which had been issued by that company. At that time Adams informed Hirsch that none of the holders of these policies knew anything about the condition of the Farmers' Merchants' Company, and that he (Adams) did not intend they should know about it, or about his procuring other policies covering the risks, until all such other policies had been written. Hirsch, according to the testimony, said it was "a good idea," and suggested to Adams that he keep the policies in his office until all of them had been written. In view of this testimony, and the testimony showing that it knew that Adams expected to pay the premiums on the policies out of his own pocket, and had agreed to look to him alone for the payment of such premiums, it seems to us appellant should not be heard to say it did not know at the time the policies were issued that the issuance thereof had been procured by Adams for the benefit of the respective persons to whom they were issued. It must have known that in arranging for the risks Adams was acting for the benefit of appellee and others who held policies in the Farmers' Merchants' Company, as well as for his own benefit, and must have known that in issuing the policies arranged for he would act for it.
The testimony as to the payment by Adams of the premiums on the policy appellant issued to appellee was unsatisfactory. It may not have been sufficient to show such payment. But whether it was or not we think was immaterial. If appellant agreed to look to Adams for the payment of the premium, that Adams had not paid it was not a reason why appellee should have been denied a recovery. Appellant's remedy for that default was by a suit against Adams to enforce the payment of the sum due it. It follows from what we have said that we think the first, second, sixth, seventh, and eighth assignments should be overruled.
Other assignments complain of the trial court's charge. We are not prepared to say it was not erroneous in several of the particulars pointed out, but the errors, if there were errors, were in favor of appellant, and it therefore has no cause to complain of them.
The judgment is affirmed. *629
