55 F. 455 | 3rd Cir. | 1893
In making absolute the rule for judgement for want of a sufficient affidavit of defense, the court below acted upon the supposed binding authority of Grace v. Insurance Co., 109 U. S. 278, 3 Sup. Ct. Rep. 207. But there the question of agency arose upon these words of the contract:
‘"¡'fee Insurance may also be terminated at any time, at the option of ilio company, on giving notice to that effect, and refunding a ratable proportion, of tlio premium for the unoxpirea temí oí the policy. It is a part of this contract that any person other than tho assured, who may have procured tho insni'aneo to be tiken by the company, shall be deemed to be the agent of the assured named in this policy, and not of this company under any circumstances whatever, or in any transaction relating to this insomneew”
The court held that this clause imported nothing more than that the person obtaining the insurance was to be deemed the agent of the insured in matters immediately connected with the procurement of the policy; that his employment was uot thereby extended beyond the procurement of the insurance; and that Ms agency ceased upon the execution of the policy; and, therefore, that subsequent notice to him of the termination of the insurance hy the company was not notice to the insured. Rut this decision hy no means rules the case disclosed by the record now before us.
The policy here in suit provides that, when from any cause the company shall desire to terminate the insurance, “it shall be lawful
“That the insured plaintiffs did not reside in Philadelphia, and their residence was not made known to the defendant until after the fire, and that in tins transaction Charles Tredick & Company were the agents and representatives of the plaintiffs in Philadelphia in all matters relating to this insurance.”
There are other statements in the affidavit in respect to the agency of Charles Tredick & Co., which perhaps are open to the objection of being equivocal, or in the nature of legal conclusions; but the averment above quoted (which seems to have been overlooked by the court below) is an independent and positive affirmation of fact, and upon a rule for judgment was to be accepted as true. But if Charles Tredick & Co. were indeed the agents and representatives of the plaintiffs “in all matters relating to this insurance,” then, by the very terms of the policy, notice to them of the termination of the insurance was as effectual as notice to the plaintiffs themselves.
The defendants in error, however, insist that the judgment may be sustained on the ground that the affidavit of defense was fatally defective, in that a tender back of a proportional part of the premium of insurance was not averred. But the court below distinctly declined to pass on the question whether an actual tender was necessary to a valid cancellation, and most certainly, in the face of the statements contained in the affidavit, the point could not properly he ruled against the defendant. In our opinion the rule for judgment for want of a sufficient affidavit of defense should have been discharged.
The judgment is reversed, and the record is remanded to the circuit court for further proceedings.
