56 Wash. 243 | Wash. | 1909
The appellant, on September 18, 1906, loaned the respondent $1,900, due in three years, for the purpose of building a dwelling house on certain town lots, taking as security a mortgage upon the property. The mortgage provided :
“The mortgagor hereby agrees (until full satisfaction of this mortgage) — to keep all buildings upon said premises insured against fire to the extent of twenty-five hundred dollars, in a company or companies acceptable to, and for the benefit of, the mortgagee, and to deliver the policies and renewals thereof to the mortgagee.”
The amended complaint states that the appellant demanded as further security for the loan, that the respondent should have the dwelling insured, and that after the mortgage had been delivered the appellant agreed, in consideration of the payment of the premium to him by the respondent, that he would have the dwelling insured as stipulated in the mortgage; that the respondent paid him the amount of the premium; that thereafter the respondent constructed the dwelling house, which was of the reasonable value of $3,500, and which was totally destroyed by fire on the 6th day of December, 1908; that the appellant did not insure the property, and that the respondent, relying upon the promise of the appellant to procure the insurance and believing that he had done so until after the house was burned, did not insure the same. The appellant answered, denying that he agreed to procure the insurance, or that the respondent paid him the premium. Upon the issues stated, the case was tried to a jury, resulting in a verdict and judgment for the respondent in the sum of $2,500. From this judgment the appeal was taken.
Over the objection of the appellant, the respondent was permitted to testify that, after the mortgage had been acknowledged, the appellant said to him, “Now, what about insurance”; that if respondent would pay him the premium, he would see that the dwelling was insured; that appellant stated that the premium on a $2,500 policy for three years
The appellant assigns error upon the admission of this testimony, and contends that it varies the terms of the written contract. We think not. A stipulation in the mortgage requiring the respondent to advance the premium and the appellant to procure the insurance, would have been valid and binding upon both the parties. The mortgage would have been a sufficient consideration to support such contract. This seems to us to be elementary. If the respondent during the negotiations, either before or after the execution and delivery of the mortgage, but as a part of the transaction, paid the premium to the appellant, and he agreed to procure the insurance and gave the receipt which we have set out, the two instruments would be construed together as one transaction, and the mortgage would be a sufficient consideration to support the promise of the appellant to procure the insurance. Suppose in lieu of the quoted clause in the mortgage, it had provided that the mortgagee, upon the payment to him of the sum of $30 by the mortgagor, would take out insurance upon the dwelling house in the sum of $2,500 for three years, loss, if any, payable to the mortgagee according to his interest, would its validity be debatable? It is fundamental that written instruments executed as one transaction will be construed together.
The respondent at the close of his testimony was permitted to amend his complaint by the substitution of certain words. This is assigned as error. The allowance of the amendment was in the sound discretion of the court, subject, of course, to the right of the appellant to a continuance upon a proper showing, which was not requested. There was no abuse of discretion in permitting the amendment.
The court instructed the jury, in substance, that evidence of prior or contemporaneous negotiations could be considered, but solely with respect to its bearing upon the probability or improbability of a subsequent agreement having been made respecting the insurance; that if they should find from a preponderance of the evidence that, after the execution and delivery of the mortgage, the appellant received the premium from the respondent and agreed to procure the policy, and failed to do so, and the dwelling was destroyed by fire within three years from the date of the alleged agreement, then they should return a verdict in favor of respondent for $2,500, or the value of the building if less than that sum. The learned trial court was evidently of the opinion that the acceptance of the premium by the appellant, subsequent to the delivery of the mortgage, upon a parol agreement upon his part to procure the insurance, made him liable in damages for a failure to do so. In this we thinlc he.was in error.
The only ground upon which the appellant can be held responsible under the evidence is that the execution and delivery
“When the agency -is gratuitous and the agent has never entered upon the performance of the service, he cannot be held liable for damage resulting from his nonfeasance, there being no consideration to support the promise. The inception of the performance is essential to the agent’s liability.” 1 Am. & Eng. Ency. Law (2d ed.), p. 1060.
There is an exception to this rule where the party promising to perform is an insurance agent or a factor or a broker.
The respondent urges that the acceptance of the premium was a sufficient consideration to support the promise. But this of itself would only render him liable to an action for the return of the money. As we have seen, when the agency is gratuitous, there is no liability unless the agent has entered upon the performance of the service. In the instant case the service was to procure the insurance. This the appellant did not do, nor does the evidence tend to show that he took any step toward its accomplishment. The respondent cites Criswell v. Riley, 5 Ind. App. 496, 30 N. E. 1101, 32 N. E. 814; Lindsay v. Pettigrew, 5 S. D. 500, 59 N. W. 726; Manny v. Dunlap, Fed. Case No. 9,047; Morris v. Summerl, Fed. Case No. 9,837; Walker v. Smith, Fed. Case No. 17,086; Samonset v. Mesnager, 108 Cal. 359, 41 Pac. 337.
In the Criswell case an insurance agent, at the request of the owner, procured and delivered to her a fire insurance policy, issued by a company other than one he represented. She thereafter paid him the premium. The policy provided that the company should not be liable until the premium was actually paid to it. The agent retained the premium. The prop
There is a statement in the Lindsay case which supports respondent’s contention, but, as we have seen, the party who was held liable was an insurance agent, and the court ad
The judgment will be reversed, with directions for a new trial in conformity with this opinion.
Rudkin, C. J., and Morris, J., concur.
Chadwick, J., concurs in the result.
Fullerton, J., dissents.