120 N.W. 545 | N.D. | 1909
This litigation arose in the district court of- Griggs county, and resulted in a judgment in defendant’s favor. Plaintiff moved for a new trial, which motion was denied, and this appeal is from the judgment as well as from the order denying such motion. The action was originally brought against the First National Bank of Hannaford and A. O. Anderson, but at the close of plaintiff’s testimony, and on motion of defendant’s counsel, the action was dismissed as to the defendant bank, .and such ruling is not challenged in this court.
The facts necessary to a correct understanding of the questions involved are briefly as follows: During the years 1905 and 1906 plaintiff was doing a fire insurance business in this state, and defendant Anderson was the duly authorized and acting local agent for plaintiff until January 19, 1906, at Hannaford, with authority ’ to issue and cancel policies of insurance. That in the month of July, 1905, Anderson, as such agent, issued and delivered to one Hyde, a policy in the sum of $2,000, covering an elevator then owned by Hyde. Such policy continued in,force until the following 15th day of January, when such elevator was destroyed by fire, and plaintiff was required under its terms to pay thereunder to Hyde’s grantee the sum of $1,152.29. On December 20, 1905, plaintiff sent or caused to be sent to Anderson the following letter of instructions relative to such policy, to wit: “December 20, 1905
The trial court submitted the case to the jury upon the evident theory that it was for the jury to determine as a question of fact which of said theories were correct. We do not so construe the testimony. The instructions were clear and specific and were susceptible of but one construction, and defendant was bound at his peril to comply therewith without delay. By such letter defendant was, in effect, instructed to at once relieve appellant of its liability to the extent of $1,500. This he could do by canceling such policy and writing a new one for said amount. Appellant was not interested in having said $1,500 transferred to some other company, but it was vitally interested, for reasons stated in the letter, in causing its liability to be reduced $1,500. Defendant, as plaintiff’s agent, owed it the duty of carrying out, promptly and in good
This brings us to that portion of appellant’s third assignment of errors, wherein .is challenged that part of the instructions to the jury relating to the measure of damages, the trial court restricting
It follows that the judgment and order appealed from were erroneous, and are accordingly reversed and a new trial ordered.