Lynn v. Burgoyne
52 Ky. 400
Ky. Ct. App.
1852
Check Treatment
Judge Crenshaw

delivered the opinion of the court.

This is an action of debt brought by Burgoyne to recover from Lynn the amount of a note, executed by him to the plaintiff for the sum of $420. Lynn relied for his defense, that there was no consideration for thе note.

The plaintiff, Burgoyne, was the agent of the Columbus Insurance Company, Ohio, and resided аt Cincinnati; and the note was executed to Burgoyne in consideration that he, as the agent of the company, would issue to the defendant a policy of insurance *401to the ámtíúntof $6,090, uрon the steamboat ‍​​‌‌​‌‌‌​​​‌​‌‌​​‌‌​‌​​​​‌​‌​‌​‌‌​​‌​​​​‌‌​‌​​‌‌‍John Drennon, for one year.

I. A policy of insurance issued bv a clеrk of the company purporting on its face that “it shall not be valid until co u n tersigned by John Burgoynе, agent at Cin-ci n n ati,” and which was never so signed, is nót a valid and binding policy.

An instrument, signed by the president of the company, purporting to be a policy of insurance, was issued and delivered to the defendant by G. W. Williams, the book-keeper of the company atCiricinnati. This instrument, upo'n its face, declares that it “shall not be valid, until countersigned by John Burgoyne, agent at Cincinnati.” It nevеr was countersigned by Burgoyne: But, some time after said instrument had been delivered to the defendant, two indorsements were made upon its back — one extending further privileges to the defendаnt, and the other transferring the instrument to Smith and others; and these indorsements are signed with the name оf Burgoyne by said G. W. Williams ; and it is contended that, if the policy were otherwise invalid for the want of the counter-signature of Burgoyne in regular form, that his name to said indorsements by G. W. Williams is a sufficient countersigning to make the instrument a valid policy.

Whether the instrument, had it been issued ‍​​‌‌​‌‌‌​​​‌​‌‌​​‌‌​‌​​​​‌​‌​‌​‌‌​​‌​​​​‌‌​‌​​‌‌‍and delivered by Burgoynе himself, as a policy of insurance, would have been valid, notwithstanding an omission to countersign it; and, whether the indorsements might be rеgarded as a sufficient countersigning, and sanction of the instrument by Burgoyne, the agent, had he, himself, put his signature to them', need not be decided. For, the issuing of the instrument, and the signatures to the indorsemеnts are; all, the acts of G. W. Williams, the book-keeper.

The deposition of Williams was taken, and he states that he had Burgoyne’s “authority for signing policies of insurance; that- losses were paid by said company on policies which Burgoyne had nevef signed in person; and that Burgoyne recognized all Ms acts, by reason of his connection with the company.”

But whatever may have been done by Burgoyne in conferring ‍​​‌‌​‌‌‌​​​‌​‌‌​​‌‌​‌​​​​‌​‌​‌​‌‌​​‌​​​​‌‌​‌​​‌‌‍authority upon William's, and in recog*402nizing bis acts, and in рaying losses by him, incurred under policies issued by Williams, is, in our opinion, immaterial. For there is no evidence that the company had been apprized of this mode of doing business at their agеncy in Cincinnati, and that it had received their sanction and approbation. Whatever effect, therefore, might be given to such acts, in the absence of the counter-signature оf the agent, need not be determined. The instrument itself, upon its face, is declared to be invalid, without the countersignature of the agent, Burgoyne; he alone had authority to issue poliсies from the office of the company at Cincinnati, and he had no right or power to* dеlegate this authority to another. And if it were conceded, that a policy issued as this was without the counter-signature of Burgoyne, might be rendered valid and effectual, by showing a subsequent approval of the company; or, that the company had known, and been in the habit of sаnctioning and approving such acts — none of these things were manifested by the proof. The agent of the company, from the nature of their business, and the large a mount of capital-which* may be supposed to be involved, ought t'o be a-man of intelligence, prudence, and integrity. And the agent, in this case, was doubtless selected with an eye to these necessary qualities. He it is in whom the company confided, from what appears in the record, and not in Mr. Williаms, who, whatever' may be his intelligence, discretion, integrity, and business capacity, was not the mаn to whom the important trusts of- the company had been committed.

2. Where a trust and confidence of a high character is given to an agent, ‍​​‌‌​‌‌‌​​​‌​‌‌​​‌‌​‌​​​​‌​‌​‌​‌‌​​‌​​​​‌‌​‌​​‌‌‍he cannottransfersueh authority, without еxpress power to do so. 3”. A’note* executed for insurance upon a void policy of insurance cannot be enforced. Hord, for-plaintiff; Payne and Harlan, for defendant. ■

We are of opinion*, therefore, from the record in this case, that the instrument- exhibited does not appear to be a valid pоlicy of insurance, and, consequently, that there seems to be no consideration for-' thе. note sued on.

Wherefore thejudgment is reversed, and ‍​​‌‌​‌‌‌​​​‌​‌‌​​‌‌​‌​​​​‌​‌​‌​‌‌​​‌​​​​‌‌​‌​​‌‌‍the cause remanded for a new trial.