156 N.Y.S. 896 | N.Y. App. Div. | 1916
On or about the 9th day of May, 1912, the Western Assurance Company, a foreign corporation, was doing business in the State of New York, and acting through its general manager in the United States, one E. S. Kelley, issued to Ernest J. Eobinson a policy of insurance upon a gasoline launch known as Dan, for the sum of $3,500. This policy was issued in consideration of the premium of $131.25, and a provision of the policy made it a condition “ that should the premium on this policy be not paid within sixty days from date of attaching, the policy shall be null and void during the time the premium is past due and unpaid.” Carl H. Oliver was conducting a business as insurance broker in the city of Plattsburgh, and at the request of the plaintiff procured the policy above mentioned from the general agent of the Western Assurance Company, and some time subsequent to the delivery of the policy called upon Mr. Eobinson and asked for the premium that he might remit the same to the insurance company, and the matter was adjusted by Mr. Eobinson giving a note for the amount of the premium which would be due to the insurance company, less the broker’s commission, Mr. Oliver undertaking to procure the discount. of the note and to pay the insurance company. It appears from the evidence that Mr. Oliver failed to pay over the money as agreed to the insurance company, and on or about the 16th day of October, 1912, Mr. Eobinson’s boat was destroyed by fire. The insurance company, in the meantime and on or about the fifteenth day of October, had attempted, by giving notice, to cancel the policy on the ground of non-payment of the premium. Mr. Oliver, after the fire and after the insurance °ompany had declined to recognize the obligation of the policy,
We are clearly of the opinion that the evidence warranted the findings of fact made by the learned trial court. There was a distinct conflict of evidence between the plaintiff and
It is urged that, assuming the facts to be as found by the court, the promise was void as being without consideration. But no lawful promise is void; it is merely unenforcible in courts where it is without consideration. Here there was a perfect legal right on the part of Mr. Oliver to make the promise; it was not contrary to morals or to law, and if there was any consideration it is sufficient to support a moral obligation of this character. Mr. Oliver was not an insurance agent in this case; he was not employed by the insurance company. He simply acted as a broker to procure the insurance for Mr. Robinson. He took Mr. Robinson’s note for the amount necessary to pay the premium and agreed to pay the same to the insurance company for Mr. Robinson. He did not do this, and, except for the fact that the general agent had so conducted himself as to justify the conclusion that he had waived the present payment of the premium to the insurance company, Mr. Robinson would have been deprived of all protection under the policy. His remedy would have been an action to recover damages against Mr. Oliver for neglecting to perform the obligation of paying over the money to the insurance company; Nothing that Mr. Oliver did in respect to the matter had any relation to the insurance company; the duty of Mr. Robinson was to pay the premium to the insurance company, and he made Mr. Oliver his agent for the purpose of making this payment, and the latter was answerable to Mr.
The judgment appealed from should be affirmed, with costs.
Judgment unanimously affirmed, with costs.