Shakman v. United States Credit System Co.

| Wis. | Feb 18, 1896

• Winslow, J.

We regard the contract before us as unquestionably a contract of insurance. An insurance contract is a contract whereby one party agrees to wholly or partially indemnify another for loss or damage which he may .suffer from a specified peril. The peril of loss by the insolvency of customers is just as definite and real a peril to a merchant or manufacturer as the peril of loss by accident, .fire, lightning, or tornado, and is, in fact, much more frequent. No reason is perceived why a contract of indemnification against this ever-present peril is not just as legitimately a contract of insurance as a contract which indemnifies against the more familiar, but less frequent, peril by fire. This very contract has been (sub silentio) construed as a policy of insurance by the supreme court of New Jersey. Robertson v. U. S. C. S. Co. 57 N. J. Law, 12.

The contract being, then, a contract of insurance, and the defendant’s business'being the making of such contracts, it follows that the defendant is an insurance corporation, within the meaning of secs. 1977, 1978, R. S. Langsdorf was its agent for the purpose of soliciting insurance, transmitting applications, and collecting premiums, and received pay therefor. He was, consequently, under sec. 1977, supra, its agent for all intents and purposes, and had power to make the additional agreement contained in the indorse.ment dated November 8th. Renier v. Dwelling House Ins. Co. 74 Wis. 89" court="Wis." date_filed="1889-04-25" href="https://app.midpage.ai/document/renier-v-dwelling-house-insurance-8183093?utm_source=webapp" opinion_id="8183093">74 Wis. 89. The court has found, on' ample evidence, that he did make that agreement, and the fact is therefore settled. It is, then, a fact in the case that a complete contract of insurance was made, on or about November 8th, by 'the terms of which the plaintiff was to have the right to use the Bradstreet’s ratings in case a given customer was given no rating by Dun.

But it is said that the memorandum sent to the plaintiff November 26th, which permitted the use of Bradstreet’s reports only after November 13th, 1889, became effective and binding by reason of the plaintiff’s receiving it and failing to object thereto. We are unable to agree with this contention. The agreement of November 8th, being perfect, the letter and inclosed memorandum of November 26th could, at the most, amount to nothing more than a proposal to change the terms of the existing contract. This the plaintiff could do or not, as he chose; but it cannot be said that he did so unless he expressly agreed to the change, or unless his silence was legally equivalent to an express consent to the proposed change. There was no express agreement to make the change, nor do we think that the simple failure to answer the proposal should be construed as such an agreement, in the absence of all evidence showing that the defendant was influenced in its conduct by plaintiff’s silence. An agreement inferred from silence must, in such case, rest on the principle of estoppel; and one essential element of estoppel is lacking here, namely, a change of position on the part of the defendant, relying on the plaintiff’s silence, which would result in substantial injury "to the defendant were it not permitted to rely on the estop-pel. The conclusion necessarily is that the contract which became perfected, November 8th, with the Langsdorf in-dorsement, became the contract governing the rights of the •parties.

Another question now arises upon the construction to be given to the Langsdorf indorsement. It will be noticed ■that the policy, though dated October 23, 1889, in terms covers the period of one year commencing on the 1st of July,. 1889, and that it insures against losses accruing for merchandise sold and delivered during that period. Thus, the-contract covers several months’ business transactions previous to its date. It appears in evidence that a considerable number of the losses for which the plaintiff has recovered judgment were suffered between July 1, 1889, and the delivery of the contract, and that these losses arose from credits given to parties who had- no credit rating in Dun’s-reports, but did have such rating in Bradstreet’s reports. It is now contended that the Langsdorf indorsement is purely prospective in its operation, and only insures losses occurring-after November 8th; so that, for the losses occurring before that date, covered by Bradstreet’s reports only, there can be-no recovery. The indorsement reads: “ Should any party to -whom above-named firm may sell goods not be rated,, within the system of this company, at Dun’s Mercantile Agency,” etc. The argument cannot prevail. This indorsement is part of the whole contract. It must be read in connection with all the other provisions of the contract, and as • though it were incorporated in the contract at the proper place. So read, there can be no doubt that the contract refers to. all goods sold afid credits given between July, 1889,. and July, 1890, and that the right to use the Bradstreet. ratings in the proper cases was intended to be as broad in its terms as to time as the right to use the Dun ratings.

Subdivision 2 of the terms and conditions of the policy provides that, in calculating “losses, no credit that may have-been given shall be included therein exceeding a credit of thirty per cent, on the lowest capital rating such party or parties were rated at in said Mercantile Agency’s books or reports.” In a number of instances of losses the plaintiff had given the insolvent debtors a larger credit than thirty per cent, of their lowest capital rating. The court allowed, in. such cases, thirty per cent, of such rating, and disallowed. the excess. It is claimed by appellant that the clause means-that the entire credit is to be excluded, and not simply the-excess above thirty per cent, of the rating. This is purely a matter of construction of language, and our construction' agrees with that of the trial court, namely, that it is only that part of the credit exceeding thirty per cent, of the rating -which is to be excluded.

It is claimed that a loss of $300 suffered by the failure of one Simansky was improperly allowed. It appears that. Simansky’s name appears in Dun’s reports with the notation “ Blank 3; ” that is, no capital rating, and credit “ fair.” In Bradstreet’s reports, however, he appears rated “X D,” which means $1,000 to $2,000 capital, credit fair. It seems to us that this loss was properly allowed. Simansky had no-capital rating in Dun’s reports. The system of the defendant required both a capital and a credit rating. This was, therefore, a case clearly within the Langsdorf indorsement, where the party was not “ rated, within the system of the company, at Dun’s Agency,” and was so rated in Bradstreet’s Agency.

This case was tried and submitted to the court February 20, 1894, and taken under advisement by the court, and held' under advisement until October of the same year. The original findings were signed and filed October 2d, and, on motion of defendant, were amended in some particulars on the 27th day of October, on which day the appellant’s attorneys made proof to the court that, on the 2d day of October, the court of chancery of New Jersey had by decree declared that the defendant had ceased to be a corporation and had forfeited its franchises and rights under the laws of New Jersey, and appellant’s attorneys objected to the entry of judgment for that reason. Thereupon the court ordered the findings to be dated and filed as of March 3d, so as to bring them within 'the term at which the case was tried, and also rendered judgment nunc fro tunc as of that day. This was right. The action was upon contract. Where such an action has 'been fully tried and submitted and taken under advisement by the court, and, pending the decision, a party dies, the ■court will not allow the action to abate, but will enter judgment as of the time when the action was submitted. The ■judgment forfeiting the franchises of the corporation could amount to nothing more than the death of an individual. & Black, Judgm. § 127; Mitchell v. Overman, 103 U.S. 62" court="SCOTUS" date_filed="1881-02-28" href="https://app.midpage.ai/document/mitchell-v-overman-90298?utm_source=webapp" opinion_id="90298">103 U. S. 62.

■ By the Court.— Judgment affirmed.