68 Colo. 350 | Colo. | 1920
delivered the opinion of the court.
This is an action for damages for breach of contract, and was brought by B. E. Glazier against J. H. Mayhew. The National Union Fire Insurance Company was made a party defendant at the request of the defendant Mayhew. Upon trial, before a jury, a verdict was rendered in favor of the plaintiff and against the defendant Mayhew. The court directed a verdict in favor of the Insurance Company. Judgment was entered in favor of plaintiff and against the defendant Mayhew for $450 and costs, and in favor of the Insurance Company against the plaintiff for costs. The defendant Mayhew brings the cause here for review.
The record shows that plaintiff filed his complaint on July 27, 1916, and on February 13, 1917, filed his amended complaint. The defendant Mayhew filed a motion to strike the amended complaint, upon the ground that the action, as shown by the original complaint, was one upon contract, and “that the amended complaint * * * seeks to recover damages for certain alleged torts.” This motion was overruled, and error is now assigned to the overruling of the motion. We agree with the trial judge, in the following statement made by him, upon overruling a motion for a nonsuit: “The allegations of the complaint as amended, show that this is an action based upon a contract and an alleged breach thereof, to recover damages. * * * It is true there are certain allegations in the amended complaint from which a person might assume or infer that the action is not based upon contract, but is based on tort. Boiled down, the complaint alleges that the defendant agreed to do a certain thing and he failed to do that certain thing. * * *” The motion to strike was properly overruled. The allegations of the amended complaint are to the following effect: That on June 9, 1916, the defendant Mayhew solicited and obtained an application for hail in
A demurrer was filed to the amended complaint, and overruled. Assignment of error No. II relates to the overruling of the demurrer to the amended complaint. The defendant Mayhew, after the demurrer was overruled, filed an answer, and proceeded to trial on the merits. This was a waiver of the right to object to the ruling on the demurrer, except as to that ground alleging failure to state a cause of action. 31 Cyc. 746; 3 C. J. 668, see. 539. In this connection, the defendant Mayhew, the plaintiff in error, contends that the amended complaint shows that “in the transaction” the defendant Mayhew “was acting for the insurance company as its agent and whatever contract was made * * * was with said company.” We do not so regard the complaint. The agreement relied on, in the complaint, is one alleged to, have been made with the defendant in his individual capacity, whereby the defendant “would immediately forward” the plaintiff’s application “to the home office of the company.” It is further alleged “that solely because of defendant’s failure and néglect to forward said application to the company’s home office * * * plaintiff’s said crop had not been insured.” The complaint shows that the defendant Mayhew was the agent of the plaintiff for the purpose of forwarding the application for insurance to the insurance company. A cause of action is stated, and there was no error in overruling the demurrer.
There are seventy-five assignments of error, in addition to those already considered. A great many of these are based upon the theory that the defendant Mayhew, in every part of the transaction with the plaintiff, was acting as the agent of a disclosed principal. This theory is erroneous, and it follows, from this circumstance, that many of the principles and authorities relied upon by the plaintiff in error are not applicable in the instant case.
There is no occasion for the application of the rule, stated in the brief of the plaintiff in error, that “no ag’ent can be bound by a contract which he makes for his principal when he discloses his principal.” The agreement of the defendant Mayhew was that he would promptly forward the plaintiff’s application to the insurance company, and cause a policy of insurance to be issued. It appears self evident that as to such agreement, Mayhew was acting for himself and not for the insurance company. Counsel for the plaintiff in error state that “in this case the evidence of the plaintiff shows that Mayhew told him that he represented the insurance company.” It may be assumed that the plaintiff understood that Mayhew was an agent for an insurance company, but that fact tends to prove rather than to disprove the existence of an agreement, such as that alleged in the complaint, between the plaintiff and the defendant Mayhew in his individual capacity. If the plaintiff believed that Mayhew was an insurance agent, he would naturally believe that such agent could cause a policy to be issued, and, if
The plaintiff in error further contends that- if plaintiff’s contract was with Mayhew personally, and not as agent for the insurance company, the contract was void as against public policy, and non-enforceable. In support of this contention, counsel cite Ramspeck v. Pattillo, 104 Ga. 772, 30 S. E. 962, 42 L. R. A. 197, which lays down the rule that an agent cannot make a valid contract where, in the same transaction, he acts as agent for both the insurer and the insured. This rule is not applicable in the instant case. The contract sued upon, alleged to have been made between the plaintiff and the defendant Mayhew, did not conflict with any duty Mayhew owed to the insurance company. Mayhew was the agent of the insurance company for the purpose of soliciting applications for hail insurance, but had no authority to issue policies. . The insurance company gave Mayhew certain instructions as to amount of insurance and
As above indicated, we find that the alleged contract, upon which the plaintiff brought this action, was one made by the defendant Mayhew in his individual capacity and not as the agent of the insurance company, and that such contract is valid. As to whether or not such contract was actually made, the evidence was conflicting. The pleading and the evidence of the defendant was to the effect, among other things, that the agreement between the parties was not that the defendant Mayhew would cause a policy to be issued to become effective not later than Wednesday, June 14, 1916, but was, in substance, that the insurance company would first investigate the plaintiff’s financial standing and would then either issue the -policy or return to plaintiff his promissory note. The jury found the issues in favor of the plaintiff. If the contract alleged by the plaintiff was made, as the jury must have found that it was,
The plaintiff’s application for insurance was for hail insurance upon eighty acres of beans at fifteen dollars per acre, so that in case of the total destruction of the crop, over the entire field, the plaintiff would be entitled to receive twelve hundred dollars’ insurance. The complaint alleges that on June 18, 1916, “a storm of hail partially destroyed plaintiff’s said crop of beans.” As to the measure of damages the court instructed the jury as follows: “You are instructed that if you find for the plaintiff, your verdict will be for such a per cent of twelve hundred dollars as the amount of beans destroyed bears to the total crop which would have been produced had no damage by hail occurred.” The liability of the defendant Mayhew, with respect to loss or damage of the crop, is the same as that which would have fallen upon the insurance company had the insurance been effected as contemplated. 22 Cyc. 1449. The
The plaintiff in error further contends that the trial court erred in permitting certain witnesses for the plaintiff to testify by giving opinion evidence concerning the number of pounds or bushels of beans that would have been produced upon plaintiff’s eighty acres of land if there had been no hail. In this connection, reliance is placed upon the rule that the opinion of a witness is inadmissible ex-
It is claimed, that the trial court struck out similar evidence. offered by the defendant, but the record does not disclose this. The defendant was permitted to testify that plaintiff would have raised “about 300 pounds to the acre,” if there had been no hail storm. He then added: “I base my calculations upon what neighbors done.” It was only this last statement that was stricken,, and properly so, because not responsive to the question propounded.
The plaintiff in error complains of the failure of the trial court to submit to the jury the defendant Mayhew’s requested instruction No. 5, to the effect that after June 12, 1916, the plaintiff “was not justified in waiting for the policy; but that it was his duty to have at once made other arrangements for insurance.” There was no error in the refusal of that instruction. There is no evidence that prior to the hail storm of June 18, 1916, the plaintiff knew or was advised that his application for hail insurance had not been transmitted to the insurance company, or that a policy of insurance had not been issued and was not in effect. According to the defendant Mayhew’s own testimony he gave plaintiff no notice whatever, prior to the time of the hail storm, that no policy had been issued. It was the duty of the defendant Mayhew, if unable to procure the insurance, to notify the plaintiff that he could not do so. Under the circumstances existing in this case, as far as disclosed by the record, it was not error for the court to refuse to give an instruction upon the rule of avoidable consequences or the duty of plaintiff to prevent or reduce damages.
Other contentions of the plaintiff in error, not herein-before mentioned, are not of sufficient importance to require an opinion upon the points therein raised. We find no such prejudicial error in the record as would justify us in reversing the judgment.
The judgment is affirmed.
Affirmed.
Chief Justice Garrigues and Mr. Justice Bailey concur.