144 P. 85 | Or. | 1914
delivered the opinion of the court.
“About the 20th of December, 1912, Mr. Kavanaugh came up * * where I was working, and he asked me if I was ready to pay the premium on my insurance policy. I told him then that I didn’t have the money to pay it at that time, and he then asked me when I would pay it, when I could pay it, and I told him that I wasn’t sure, just when I could pay it. Mr. Kavanaugh then said, ‘You are not going to drop it, are you?’ and I said, ‘No; not if I could help it.’ Mr. Kavanaugh then says to me, ‘Well, we will carry it for you for awhile. ’ I thanked him and told him that I would pay it as soon as I could, and he then went away.”
If the agent was going to carry the policy for plaintiff, the renewal receipt must have been surrendered. In another case, when asked if his policy was still in force, he answered: “Well, I understood that it was renewed.” This was not a statement of a fact. It tends to show that he had no reason to think that he had renewed his policy, but was just making an attempt to continue an option thereon. There was nothing said in the conversation by him and Kavanaugh that would be understood as creating a liability to pay, and would not bind the company. It could not have enforced any remedy for the premium. The fact that Kavanaugh did not deliver the renewal receipt would have been a complete defense to an attempt by the company to collect on that conversation. The payment made on the 13th of February was plainly an after-consideration, and would not have been made but for the accident.
Plaintiff urges that if there is any evidence in plaintiff’s favor, the verdict should not be disturbed. The payment is not evidence that should be submitted to the jury; and the only other question that might in any circumstance be submitted to the jury would be evidence of a contract of renewal; but, as we have seen, that is insufficient to sustain a verdict.
There is no evidence that Kavanaugh’s authority was sufficient to authorize him to waive the stipulations in the policy, nor was there auy evidence that the company, either by word or act, waived its terms. No issue of that kind was set up or proved.
The judgment of the lower court is reversed, and the motion for nonsuit allowed. Reversed.