93 Ga. 604 | Ga. | 1894
Gilbert applied, through one Cade, for a policy of insurance in the Mutual Life Insurance Company of Kentucky, and received what was known as a “ twenty-payment life” policy. Being dissatisfied with it, he requested Jones, geueral agent of the company for the States of Georgia and Alabama, to substitute for it another policy of a different kind. This Jones agreed to do, and accordingly took up the policy held by Gilbert, who at the same time made and delivered to Jones a promissory note for $92.04, which was the amount of the first annual premium upon the new policy Gilbert was to receive. This note was made payable to the order of Jones, and it was understood that Jones was to advance to the company the money for the premium, it being a rule of the company to require payment in cash of the first premium upon every policy issued by it. Jones procured a “ten-payment life” policy and forwarded it, by mail, to Gilbert, who, after keeping it several weeks, brought it back to Jones, stating that it was not the kind of policy he, had applied for, offering to return it, and demanding the surrender of 'his note. Jones refused to take the policy or to give up the note. He afterwards brought suit upon the note against Gilbert, and the defence to the action was, in substance, that Jones had agreed to obtain for Gilbert a “ten-year endowment” policy and had failed to do so, but on the contrary, had obtained and forwarded to Gilbert the “ ten-payment life” policy above referred to. The con; trolling issue on the trial, therefore, was whether the plaintiff had delivered to the defendant the kind of policy of insurance for which the latter had contracted, or a policy of a different kind.
It does not appear that, at the trial in the court, below, the plaintiff insisted that the defendant was estopped from returning the policy by reason of the fact that he
It was insisted for the plaintiff, in this connection, that the policy was a binding contract upon the company, and that if Gilbert had died with the policy in his possession, his wife, to whom the policy was payable, could have compelled payment to her by the' company of its face value. "Whether this be so or not, nothing of the kind actually happened, and it- does not appear thát either Gilbert or his wife derived any benefit whatever from the policy. Of course, if either or them had collected anything on the policy, pledged it
Upon the facts as found by the jury, Gilbert was simply holding in his possession a paper belonging to Jones, to the possession of which Jones would have become entitled by returning Gilbert’s note. As Jones, however, refused to thus obtain possession, he cannot compel a payment of the note simply because, by reason of such conduct on his part, a benefit might possibly have accrued from the policy to Gilbert’s wife to which, in strict justice and equity, she would not have been entitled. It would be a somewhat analogous case if one should order goods of any kind, give a note in advance for their value, and when the goods were received they should not be of the kind ordered. In such a case, it would be the right of the purchaser to return the goods and get back his note; and if the seller refused to take back the goods and surrender the note, then the purchaser could lawfully retain possession of the goods, for his own protection, and for the seller’s use. Simply doing this would not render the purchaser liable to pay the note; but if he consumed, or in any way used the goods as his own, he would be liable at least for their-value. In principle, the case at bar is a cáse of this-kind.
The plaintiff’s version of what occurred between himself and Gilbert was as follows: “ I had no personal knowledge of the application of defendant to Cade. , My first personal connection with the matter was when defendant came to my office and brought back the twenty-payment life policy which had been issued him on his application given to Mr. Cade. He said he was dissatisfied with it and wanted to change it; that.he would have to pay money too long; that his family would be growing up before the policy was paid up, and he would be needing the money to send his children to school. I got my rate book — the same I now have in my hand— and explained to him the different kind of policies we issued, the rates, etc., etc. There were four policies which we talked about and which he considered. One was the ten-year endowment, wherein premiums are
The above account of the conversation between the plaintiff and the defendant was fully corroborated by another witness named Quillian, but it is fair to say the defendant testified that Quillian was not present at the interview between Jones and himself when the change of policies was requested. There is no real conflict between the testimony of Gilbert and that of Jones and Quillian, except upon the one question as to whether
The trial judge could, with the utmost propriety, have granted a new trial in this case. He had a discretion to exercise. We have none. Had he granted a new trial it would have met our full approbation. As he declined to do so, it is- not the province of this eom’t to disturb his judgment. Judgment affirmed.