293 Mass. 514 | Mass. | 1936
Munro was a general agent of Lloyd’s Insurance Company of America, hereinafter called Lloyd’s. The defendant’s intestate, one Gould, acted as an insurance broker. Lloyd’s, Munro and Gould did business in accordance with an established course of dealing under which Gould solicited business in Lloyd’s, and on the issuing of a policy, Lloyd’s billed the premium to Munro, who billed it to Gould, who billed it to the assured or collected it from the assured when the policy was delivered. Gould had no direct dealings with Lloyd’s, but settled his accounts with Munro semimonthly. Lloyd’s ceased to do business and cancelled all its policies. Among the cancelled policies were two upon which Gould had received the full premiums from the persons insured and in reference to which Munro had paid an equivalent amount to Lloyd’s in accordance with the established practice. Munro brings this action to recover from Gould’s estate the amount so paid.
The judge found that “the relation between the defendant’s intestate and the plaintiff was that of debtor and creditor and that, notwithstanding G. L. c. 175, § 176, the defendant’s intestate did not hold the premiums in trust for Lloyd’s,” and found generally for the plaintiff for the full amount of the premiums of the policies, after deducting Gould’s commission and a payment previously made by Gould to Munro equal to that portion of the premiums which had been earned before cancellation.
The custom of dealing among the parties was a sufficient basis for a finding that it was understood and agreed that whenever Lloyd’s issued a policy which had been solicited by Gould, Munro should pay the full premium to Lloyd’s, and that upon such payment Gould should become obligated to pay that same amount to Munro. Monitor Mutual Fire Ins. Co. v. Young, 111 Mass. 537. Taylor v. Lowell, 3 Mass. 331, 352. Apparently this is the contract which the judge found. Moreover, the general finding for the
There is nothing in G. L. (Ter. Ed.) c. 175, §§ 169 and 176, which forbids such a contract between a general agent and a broker. Doubtless as between the insured and Lloyd’s a payment of a premium to Gould would have been a valid payment by virtue of § 169. But Gould would not hold the premium in trust for Lloyd’s under § 176 after Lloyd’s had received the amount from Munro in accordance with the understanding of the parties. Nor is there anything in Union Mutual Casualty Ins. Corp. v. Insurance Budget Plan, Inc. 291 Mass. 62, 69, in conflict with what is here decided. That case did not rest upon any such contract as must now be deemed to have been made between the parties in this case.
The record fails to disclose anything amounting to a discharge or satisfaction of Gould’s obligation to reimburse Munro for the payments made by him to Lloyd’s for the premiums on the two policies. The cancellation of the policies by Lloyd’s did not discharge Gould. See Monitor Mutual Fire Ins. Co. v. Young, 111 Mass. 537, 539. The fact that Gould’s administrator furnished insurance without charge to the assureds named in the cancelled policies did not have that effect. The judge was not obliged to find that the payment by Gould to Munro of the amount of the earned premiums was received in full settlement of Munro’s entire claim.
We find no error in the refusal of the defendant’s requests for rulings.
Order dismissing report affirmed.
