23 Wend. 18 | N.Y. Sup. Ct. | 1840
By the Court, Without intending to intimate any opinion on a question which may be made between the principals and their agent, I shall assume, for all the purposes of this case, that the agent departed from his instructions in taking a risk at Utica. This hypothesis will not aid the defendants. Hayner was a general agent for effecting insurances on behalf of the company, and acted within the general scope of his authority in taking this risk. Although he must answer to his principals for departing from their private instructions, he clearly bound them so far as third persons, dealing with him in good faith, are concerned. The question is not so much what authority the agent had in point of fact, as it is what powers third persons had a right to suppose he possessed, judging from his acts and the acts of his principals. Perkins v. Wash. Ins. Co., 4 Cowen, 645. This rule is necessary to prevent fraud, and encourage confidence in dealing. 2 Kent's Comm. 620. *It is difficult to conceive how the defendants could have con- [ *23 ] ferred a more unlimited authority upon the agent, so far as third persons are concerned, than they did by furnishing him with policies already executed by the officers of the company, and ready to be delivered to any one Ayho might wish to contract, after his name, the subject insured, extent of the risk, and date of the transaction had been inserted in the contract. The plaintiff had a right to believe that the defendants reposed
The objection that this was a special risk, and that Playner bad no authority to take special risks without consulting the company, depends on the same principle as the objection already noticed, and requires no separate consideration.
There is no ground for imputing bad faith to the plaintiff, or to his agent, Knowlton, who negotiated the contract with Hayner. So far as appears, the plaintiff did not know that the defendants had an agent in Utica ; and if he had known that fact, he did not instruct his agent at Troy to insure with the defendants. Knowlton called on Hayner, because he saw from the sign on his door that he was an agent for making insurance. He asked Hayner if he had authority to take risks in Utica, and the agent answered he thought he had. There was nothing in this calculated to excite a doubt concerning the extent of the agent’s powers : and besides, the counsel did not suggest on the trial, as they did on the argument, that there was enough to put Knowlton upon enquiry. It is too late now to raise that question, if there was ever any ground for making it.
[ *24 ] *The offer to prove that risks in the plaintiff’s block were very hazardous, was of no manner of consequence, so long as there was no pretence that the plaintiff had either misrepresented the true character of the risk, or omitted any thing which should have been stated in the survey on which the defendants acted. Nor was it a matter of any moment that the defendants’ agents at Utica had refused to take risks in that block, and would have refused this risk had it been offered to them. That fact could prove nothing against the plaintiff. And had the plaintiff known that R. & S., the agents at Utica, had refused to insure other buildings in the same block, which is more than the defendants offered to prove, that would not alter the case. Because other persons could not obtain insurance, it did not follow that the plaintiff could not; and if the plaintiff himself had been refused by one agent or company, it did not preclude him from applying to another. If he was chargeable with no concealment or misrepresentation, affecting the contract which
The defendants did not avow on the trial that they intended to impute fraud to the plaintiff; but if they had done so, the several offers of evidence did not go far enough to raise such a question.
If the policy was well delivered, it took effect by relation from the day of its date, which was the day on which the premium was paid and the contract concluded. Jackson v. Ramsay, 3 Cowen,’75, and eases cited. It was the manifest intent of the parties that the contract should operate from the day of its date, so as to give the plaintiff the same legal remedy which he would have had if the policy had in fact been delivered on that day; and the law will give effect to that intention. This doctrine was not directly denied on the argument; but it was said that the policy had in fact been delivered on that day; and the law will give effect to that intention. This doctrine was not directly denied on the argument; but it was said that the policy was not duly delivered on the 21st April, for the double reason that the power of the agent was then at an end, and the plaintiff had notice that the defendants refused to ratify or be bound by his act in making the contract.
*Although the defendants told the plaintiff on the 21st of [ *25 ] April that the authority of Hayner had been revoked, the letter of revocation was not even written until the next day, and it was not received by Hayner until the 23d of April. So far as the agent was concerned, he not only pursued hid authority in delivering the policy, but he acted in perfect good faith towards his principals, for he had no notice that they intended to put an end to his agency. The delivery was well made and bound the defendants, unless there was something in the circumstances of the case which should have precluded the plaintiff from receiving the policy when it was offered to him.
How does the question stand in relation to the plaintiff ? He had, as we have already seen, made a valid contract with the defendants, and was entitled to the usual evidence of that contract — a policy of insurance. He could, I think, have maintained an action on the case against the defendants for a refusal to deliver the policy, in which he would have recovered damages to the full amount of his loss. But if his remedy at law was unquestionable, he had a perfect equitable right to the delivery of the usual policy, which he might have enforced in the proper forum. Perkins v. Washington Ins. Co., 4 Cowen, 645. Having this equitable right to the policy, he was clearly at liberty to receive it, when voluntarily tendered to him by one who had authority to deliver it. It would be a refinement in law, if not in ethics, to hold a man precluded from accepting that which was rightfully his due, because
The plaintiff was not told that the authority of Hayner had been, or would be revoked, until his second call at the defendants’ office on the 21st of April, and, for aught that appears, the policy had then been delivered. But suppose the delivery was after the second call. The plaintiff was not chargeable with notice that the powers of the agent had been revoked, for such was not the fact. The defendants can claim nothing on the ground of having given information which was untrue. The only notice, then, which could properly be'imputed to the plaintiff, [ *26 ] was notice that the defendants intended to revoke the powers of the agent. Immediately afterwards, if it had not happened before, Hayner met the plaintiff, in pursuance of the appointment previously made at Troy, and delivered the policy. There was no false suggestion or deceit on the part of the plaintiff — he neither said nor did any thing to induce the delivery. The matter then comes to this : The plaintiff accepted that which was voluntarily tendered, and was his rightful due, with the knowledge that his debtor did not intend he should have it. That cannot be a good impeachment of his title.
Although the plaintiff could not sue on the receipt for premium, that paper was properly received in evidence as a part of the transaction. The objection to reading the policy in evidence, is disposed of in what has already been said ; and so also with the objection that the preliminary proofs showed a loss accruing previous to the execution and delivery of the policy. There are, I believe, no other exceptions which were not abandoned on the argument.
New trial denied.
