18 Minn. 448 | Minn. | 1872
By the Court.
The principal controversy in this case relates to the law applicable to certain facts with regard to which there is very little difference between the parties.
The defendant is a life insurance company, having its home office in the city of New York, and a local agency in St. Paul, in charge of one Ferdinand Willius. On the first day of September, 1870, the plaintiff made a written application to defendant (through said Willius) for insurance upon the life of
On said first day of September, said Willius, by mail, transmitted to defendant’s home office the application enclosed in a letter of that date, the text of which is as follows: “ Enclosed please find application of E. Schwartz, $1,000.” On September 9th, Willius received from the home office a letter signed by defendant’s president, dated September 5th, acknowledging receipt of the application and letter from Willius, and enclosing a policy on the life of Eriedolin Schwartz, bearing-date on said fifth September. This policy is, in general, in the usual form of policies of endowment assurance. It provides for the payment of annual premiums of $62.88 each, the
Plaintiff’s counsel takes the position, that these facts make out an acceptance by defendant of a proposition by plaintiff, the effect being to conclude “ a contract of insurance between the parties according to the terms proposed.” What is said in Heiman vs. The Phœnix M. L. Ins. Co., 17 Minn. 153, would seem to be in point here. “The application for insurance is a mere proposal on the part of the applicant. When the insurer signifies his acceptance of it to the proposer, (and not before,) the minds of the parties meet and the contract is made. This acceptance must be signified by some act.” Plaintiff’s appli
Plaintiff having thus repudiated her own proposition, and refused to comply with the condition upon which the defendant signified its acceptance of her proposition as the basis of a contract of insurance into which defendant offered to enter by delivering its policy, defendant, so far as any obligation or liability to plaintiff was concerned, stood precisely where it would have stood if it had never accepted plaintiff’s proposition, conditionally or otherwise. Under these circumstances defendant certainly had the right to insist that it was not bound to the plaintiff by any contract of insurance, or by any agreement to enter into a contract of insurance. After plaintiff had thus refused to receive the first policy, it was at plaintiff’s instance returned to defendant’s home office. We are unable to conceive why, under these circumstances, it was not utterly inoperative as a foundation for any rights whatever upon plaintiff’s part, whether such rights are sought to be placed upon the ground that defendant had insured, or upon the ground that it had agreed to insure the life of her husband. If we are right it follows that, if there was any contract concluded between the parties to this action, this result must
The facts already detailed show that plaintiff’s request that the policy should provide for semi-annual, instead of annual premiums was acceded to, and that accordingly, a second policy providing for such semi-annual premiums was transmitted from defendant’s home office to defendant’s agent (Willius,) at St. Paul. Plaintiff’s counsel claims that this second policy was not a new contract; that the original contract was not superseded or rescinded by it, “ but only modified in relation to the manner of paymentthat it “was really an affirmation of the original contract; that it was intended to be but a re-draft of the first as modified by mutual consent.” However ingenious these suggestions may be, it is evident that they possess little or no force if the views which we have already expressed in regard, to the first policy, and its utter inoperativeness as a contract of any kind, or as evidencing a contract of any kind, are sound. As we have no doubt of their soundness we are forced to the opinion before expressed, that if there was any contract concluded between the parties, this result must have been brought about by the second policy,, and the facts which transpired in reference to it. The second policy was never delivered nor offered to be delivered to plaintiff, or to any one for her. Yet, independent of this policy there is nothing in the case tending to show any binding acceptance of plaintiff’s proposition, or any agreement to insure or contract of insurance. If, then, defendant in any way signified its acceptance of plaintiff’s proposition, so that a contract was concluded between the parties, it must have done it by transmitting the second policy to Willius, its agent, for the purpose of having the same delivered to plaintiff upon payment of the first premium in hand. And if Willius had no authority, discretion or duty in the p premises, save only to
Nor is this a case in which where an agent performs an act within the apparent scope of his authority, the act binds his principal, notwithstanding it Was done in violation of private or secret instructions. The case at bar is not one in which the agent has performed any act in the name of his principal, under an apparent authority to perform the same, so that the party with whom he has contracted has acquired rights which the principal will not be permitted to gainsay. But if the instructions under which Willius refused to deliver the policy' were in fact given, the case is one in which the agent has refused to perform an act which would bind his principal, and by virtue of which, if performed) the plaintiff would acquire certain rights against such principal, and has refused to do this because instructed by his principal so to do. Now, if the plaintiff had acquired any right to the policy, or to a contract of insurance except such as was subject to the condition of her husband’s good health,, (as we have endeavored to show that she had not, if the instructions referred to were in fact given,) then she might well contend that she ivas not to be deprived of that right by any private instructions given by defendant to its agent. Not having acquired any such right, (that is to say, if the instructions referred to were in fact given,) she is not in a position to insist that the policy shall be delivered to her in disregard of such instructions, or that she shall have the same rights and benefits as if it had been
We think the court was justified in receiving the evidence of what was said by Gustav Willius at the time when plaintiff went to the banking office occupied by him, Gustav, and his brother Ferdinand, (defendant’s agent) since there was testimony tending to show that Ferdinand was present at the conversation, and also that Gustav was in the practice of assisting his brother in the insurance business, and of attending to the same in his brother’s absence.
The 10th interrogatory addressed to Schwendler, (defendant’s vice president,) inquired for the custom, of defendant as to ’ delivering policies. The answer, which appears to be responsive to the interrogatory, states, among other things, a custom of the defendant not to deliver, or send policies to agents for delivery, except upon the condition that the person whose life is to be insured is in good health. We think the interrogatory and answer were properly excluded. Unless this
In regard to the statements contained in the application (and mentioned in the early part of this opinion) as to the health, bodily defects, &c., &c., of Freidolin Schwartz, we are of-opinion that they had reference to the state of facts existing or which had existed at the date of the application, not to any which might occur subsequently to such date. The points made by defendant in reference to the court’s refusal to instruct the jury as requested upon the question of tender, do not appear to be particularly insisted upon. It is unnecessary to say more in regard to them than that, we think, the tender sufficiently pleaded in the complaint; that it was not necessary for plaintiff to bring the amount tendered into court, the case being one in which if she is entitled to recover at all defendant may receive the premium money in the way of a deduction from the sum -of her recovery, and that as the evidence tended to show an absolute refusal to receive the tender, the manner in which the testimony tended to show that it was made was, beyond doubt, sufficient.
We need not consider the propriety of the questions which were' excluded by the court as not proper cross-examination. This objection to them can easily be obviated if a new trial should be had. Nor need we consider the point made as to the allowance of interest on the judgment. An amendment, allowable as a matter of course, would prevent the recurrence of the question raised.
This in effect disposes, we think, of all the important matters presented by the case. Order refusing a new trial reversed and new trial granted.