Monitor Mutual Fire Insurance v. Buffum

115 Mass. 343 | Mass. | 1874

Wells, J.

The question in this case is simply whether the notes, given to the plaintiff, in the name and behalf of the defendant, became his notes, either by previous authority to Bubier, or by subsequent ratification.

Upon the defendant’s own testimony in the case it appears that he told Bubier that he might procure insurance for him in some good company. Bubier, acting within the scope of this authority, did procure certain policies of insurance for him, giving the notes in question as deposit notes for a part of the premium, in accordance with the by-laws and practice of the insurance company. The defendant received the policies from Bubier, paid him the cash premium, put the policies in his desk, and retained them nearly four of the five years they had to run. The policies recited, as their consideration, the payment of a certain sum as cash premium, and the giving of a deposit note of like amount and oí even date.

The defendant having thus accepted the policies and held them as contracts binding upon the insurance company, must be taken • to hold them according to the terms which they express. In the absence of fraud he is conclusively presumed to assent to those terms- He cannot be permitted to qualify his contract or his relations to the subject matter of it, by asserting and proving that he never read the writing and was ignorant of its contents. If he would bind the other party he must be bound himself. Grace v. Adams, 100 Mass. 505. The same principle applies to this case. By accepting the policies which expressly recite the corresponding obligation entered into on his part, the defendant adopted the act of Bubier in assuming that obligation for him as part of the transaction.

The fact, known to the defendant, that Bubier was agent of the plaintiff for the purpose of soliciting risks, would not prevent his acting for the defendant in executing the premium notes, if expressly authorized thereto ; and subsequent ratification is equivalent to such express authority.

By the terms of the report “ if the plaintiff’s view of the law is correct the verdict is to be set aside, and judgment entered for the plaintiff for the amount of the notes and interest.” The plaintiff’s view of the law, as stated in the report, is that the defendant by accepting me policy “ ratified the act of Bubier and was estopped to dispute the execution or validity of the notes.” Estoppel is technical, and does not accurately describe the defendant’s condition. But as there is no fact open which ought to be submitted to a jury ; and as upon the facts stated in the report the defendant must be conclusively presumed to have adopted the act of Bubier in giving the notes upon which the policies were based, the same result must follow as if it were an estoppel. Judgment for the plaintiff,