111 Mass. 537 | Mass. | 1873
This is an action of contract for money had and received. The evidence showed that the defendant, an insurance broker, had been in the habit of bringing applications for insurance to the plaintiffs in behalf of others; and that the practice was, when the company issued policies upon such applications, to charge the cash premiums to the defendant, who collected them of the assured, and accounted for them to the company in monthly settlements. This evidence was competent to show a course of dealing between the parties, the effect of which was to make the defendant the agent of the plaintiffs for the purpose of collecting the cash premiums of the assured. It is clear that the company could not recover them of the assured after payment to the defendant, and it is equally clear that the money collected by the defendant of the assured was received by him to the use of the plaintiffs.
The fact that the company was insolvent at the time of issuing the policies in question, was immaterial. It "is not necessary to consider whether the assured could avoid their contracts on this ground. If they could, the defendant cannot avail himself of this defence as an excuse for not paying over money in his possession which belongs to the plaintiffs, and to which, so far as appears, no one makes any claim.
The plaintiffs are therefore entitled to recover the amount of the cash premiums received by the defendant for the two policies issued in December 1870. As the evidence shows that the defendant did not receive the premiums on the two policies issued in January 1871, the plaintiffs cannot in this action recover anything on account of such policies.
Judgment for the plaintiffs.