65 Wis. 436 | Wis. | 1886
The controlling question is, Did the defendant company contract with the plaintiff to insure his building, as charged in the complaint ? The testimony of the plaintiff as to the making of the alleged contract is as follows: “About the 17th of November, I had a conversation with M. G-. Bradt about insuring this building. I went to Mr. Bradt and asked him if he wouldn’t insure my house. He said he would. I told him I wanted it insured for three years for $300. ITe said he would. I asked him how much ? $3.75. . . . He said he would insure it. I told him to make out the policy, and I would pay him for it. . . . He didn’t say anything in reference to the payment of -the premium.” It appears that Bradt was the general agent of the defendant, and also of another fire insurance company; but it does not appear that the plaintiff knew what companies he represented, or even that there was such a company as the defendant, or that anything was said as to the company which was to take the risk. There was some other testimony which tends to show that the agent, Mr. Bradt, waived the immediate payment of the premium. No pre
Conceding that a contract was made between the plaintiff and Mr. Bradt by which the latter agreed to insure the plaintiff’s house in one of the companies represented by him; that it was left to the agent to select the company which should take the risk; that the term of three .years and the premium of $3.75 were agreed upon; and that payment of ■the premium as a condition precedent to the validity of such contract was waived,— still such contract would not be the contract of the defendant, and could not bind it, until the agent should in some manner designate the defendant as the party for whom he contracted. Until that time an action on the contract to insure might with equal propriety have been brought against any other company represented by Mr. Bradt.
We have, therefore, this question: Did Mr. Bradt designate the defendant as the company for whom he made the contract to insure plaintiff’s buildings? On November 20th, being the day before the house was burned, Bradt made an entry in the register or record of daily reports of the defendant, kept by him, as follows: “ No. 81. Henry Sheldon, November 20, 1884, 12 months. Expiration, Nov. 20, 1885. $300. Rate $1.25,— $3.75. $300 on his two-story, frame, shingle roof dwelling,” etc. This refers to the dwelling which was burned. He also filled up and countersigned a policy of insurance in the defendant company, in accordance with such entries. On the next day (probably, before the fire) he wrote in the same register: “ Risk rejected by the company;” also, “Not written up, by order of the company.” At the same time he sent the policy to the company. In all this the agent acted on his own judg
Stated most favorably to the plaintiff, the substance of the transaction is this: Bradt agreed to insure the plaintiff’s house, on certain specified terms, in some company represented by him, but not designated. The defendant, being one of those companies, decided to insure the house on entirely different terms; but before the plaintiff wks informed thereof (and of course before any acceptance) the company determined not to take the risk. That was an end of the matter. Ro case is cited in which a recovery has been upheld under such circumstances. It necessarily results from these views that the defendant never became a party to the alleged contract to insure plaintiff’s house, and hence is not liable in this action. Ve conclude that the nonsuit was properly ordered.
By the Court.— Judgment affirmed.