140 S.E. 552 | W. Va. | 1927
On June 20, 1925, the plaintiff purchased at public auction from the administrator of W. H. Miller, deceased, an untenanted farm of 125 acres at the price of $895.00. This farm had been unsuccessfully hawked at two other auctions. On the farm were some old buildings, on which the administrator was carrying $1,300.00 fire insurance. Meadows and the administrator notified H. L. Alexander, an insurance agent, about June 27th of the sale to Meadows, and arranged that the policy should be cancelled in the name of the administrator and reissued to Meadows. Meadows then stated to Alexander that the insurance on the Miller buildings was not enough, and that he would want more, but did not say what amount he wanted.
On July 1st Meadows went to the office of Alexander, who was out of town. Meadows gave to a clerk in the office valuations on the Miller buildings totalling $2,315.00 and requested insurance for that amount. The clerk filled out, according to Meadows' valuations, one of defendant's policy forms, which she placed on Alexander's desk, but to which his attention was not called. Another policy in favor of Meadows was also on Alexander's desk awaiting his signature. It was a renewal of $1,400.00 insurance on the home of Meadows, which was in the same vicinity as the Miller farm. The description of the property insured was practically the same in each policy. Meadows returned to Alexander's office on July 3rd. Under the impression that the policy for $1,400.00 was on the Miller buildings, Alexander signed and delivered it to Meadows. Believing that the policy delivered was on the *582 Miller buildings and for $2,315.00, Meadows accepted it. On the afternoon of that same day the Miller property burned. Meadows reported to Alexander on the day following that the policy for $1,400.00 was not on the Miller buildings, and demanded the $2,315.00 policy on that property. Later Alexander discovered the $2,315.00 policy but refused to sign and deliver it. This suit was brought by Meadows to recover of defendant $2,315.00 as insurance on the Miller property. The lower court found in favor of plaintiff.
Lenore Smaltz, aged nineteen years, was Alexander's clerk. Testifying for plaintiff, she stated that her duties consisted in sending out bills, taking in money and writing up policies; she always gave the policies to Mr. Alexander to approve and countersign, unless he had given her special authority to do so; she did not know whether she had authority to make an insurance contract with Meadows; Alexander had given her no special authority to execute the policy on the Miller property; she expected him to approve that policy; but he reserved the right to change and at times did change the amount of insurance and make other changes in policies which she prepared; and she did not discuss with Meadows his valuations, but simply told him she "would write the policy up".
Plaintiff contends that the evidence of Miss Smaltz demonstrates that she had full authority to represent Alexander, and that her acts effected an insurance contract between the defendant and himself, citing Rohrbough v. Ex. Co.,
In the New Jersey case above referred to, the court approved an instruction which stated: "It is a maxim of the law that delegated power cannot be delegated; the delegate cannot delegate; he may use others in the accomplishment of particular transactions which he directs, but he cannot grant to the discretion of others that which was entrusted to his discretion." See also 2 C. J. 685; 21 Rawle C. L. 860. The determination by an agent of the amount of insurance to place on property is an act involving both trust and discretion. Therefore such determination cannot be delegated. Even if the acts of Miss Smaltz be held to constitute assent by her to the valuations named by Meadows, such assent was beyond her authority and does not bind the defendant. Meadows' transactions with her amount to no more than a bare request or proposal by him that the valuations on the Miller buildings be increased to $2,315.00. That proposal was not known to Alexander prior to the fire and was never acceded to by him. It is true that plaintiff and Alexander attempted to consummate an insurance contract. Plaintiff thought Alexander had accepted his proposed valuations. Alexander accepted what he thought plaintiff had proposed. Both were mistaken. There was no meeting of the minds, and consequently there is no contract. A contract of insurance, like any other contract, must be based on a mutual agreement. "The contract of insurance is to be tested by the principles applicable to the making of contracts in general. The terms of the contract must have been agreed upon. If the contract is incomplete *584
in any material particular * * * it is of no binding force."Clark v. Ins. Co., 89 M. E. 26. McCully's Admr. v. Ins. Co.,
In Costello v. Ins. Co.,
Other grave objections to plaintiff's right of recovery are presented by defendant. But as plaintiff's suit fails for want of a contract, further discussion is unnecessary. The decree of the lower court is accordingly reversed, and the plaintiff's bill dismissed.
*586Decree reversed; bill dismissed.