149 N.Y.S. 1008 | N.Y. Sup. Ct. | 1914
The complaint'alleges that the plaintiff is a resident of the city of Buffalo and duly authorized to transact the business of an insurance broker, and that the defendant Connecticut Mutual Life Insurance Company is a foreign corporation, with its principal place of business in the city of Hartford, Conn.; that heretofore and on or about the 3d day of June, 1907, the above-named plaintiff and one David B. Cooper, as general agent of said defendant Connecticut Mutual Life Insurance Company, entered into a certain contract in writing wherein and whereby the plaintiff herein became the agent of said Cooper and of the said defendant, etc. The contract mentioned by' its own terms provided that the event of the death of either party thereto, or “ the termination of the general agency contract between the first party and the said company, shall terminate this agreement,” and it appears clearly that the general agency contract was terminated and that the contract above mentioned shall terminate with the termination of such contract, so that it is difficult to understand how the fact of the existence of this particular contract
If we are right in this proposition, it follows that in the determination of the present controversy it is only necessary to consider the language and terms of the last contract. The complaint, however, insists upon treating these three distinct contracts between different parties as one continuing contract, and alleges that during the term “ of said contracts herein-before alleged this plaintiff procured new insurance for said defendant * * * pursuant to the terms of said contracts to the amount of about the sum of $165,000, upon which this plaintiff was and is entitled to the payment of his certain commissions on first year
While fraud is alleged, no facts from which the inference of fraud arises have been proved upon the trial of this cause, and while we are not ready to hold that this is fatal to the action under the provisions of section 549 of the Code of Civil Procedure, we are of the opinion that the broad question presented at this time
In other words, these contracts provided that the plaintiff should be employed for an indefinite period; that the contracts might be terminated by either party by giving the other party notice thereof in writing; that the terms of payment for such services should be based upon the first year’s premiums, with certain allowances for each of several renewal premiums, and that if the contract of employment was terminated for “ any other reason ” than that of the death of the agent or the termination of the general agency, after it had been in effect for two years, the rates of such renewal commissions should be as fixed in an annexed schedule. But all of these provisions were subject to the further stipulation that ‘ ‘ if the party of the second part shall at any time after such termination engage in the business of life insurance, except for the said company, all rights to commissions thereunder shall thereupon terminate.” There was no absolute right to' these renewal commissions; the parties had a perfect right to agrée upon the conditions upon which the renewal commissions should depend, and the plaintiff, having agreed to remain out of the insurance business for any other company as a condition of receiving the renewal premiums, is not in a position to claim the commissions after having engaged with the New England Life Insurance Company. The contract violates no public policy; it does not obligate the plaintiff to desist from earning a livelihood in the insurance business. It merely provides that if he elects to engage in such business during the running of the policies which he has written he will not demand the commissions upon the renewals. This was a lawful condition. The plaintiff had a perfect right to stipulate as
Indeed, it may be stated that in the absence of any provision in the contract itself the defendants were' at
We have no quarrel with the authorities cited in behalf of the plaintiff; each one of the cases is correctly decided upon the facts as they appeared upon the trial of those causes. But not one of them runs counter to the determination reached in this case. In Hercules Mutual Life Assurance Society v. Brinker, 77 N. Y. 435, the contract provided that the agent should be paid the renewal commissions for a fixed period upon policies procured by him upon the collections being made by himself, with a provision for. decreasing the
In Heyn v. New York Life Ins. Co., 118 App. Div. 194, the court held that, where a contract of agency for an indeterminate period provides for commissions on the original or renewal cash premiums collected “ during his continuance as said agent,” the agent is not entitled to commissions after the termination of the employment. This case was reversed in the Court of Appeals (192 N. Y. 1) upon the ground, not that the court below was mistaken in the law, as applied to the contract, as it was assumed to be, but that the contract itself did not limit the commissions to those collected during the term of the employment. It was held that a different clause of the contract furnished the measure of the compensation. There is no suggestion that if ■the terms of the contract had limited the commissions to the time that the rplaintiff remained in the employment the court would not have enforced that provision ; it simply held that this clause, being left blank as to the term of years, was not complete, and that the clause of the contract in writing controlled. It announced no new principle of law; it simply gave a construction to the contract which took it out' of the rule announced in the court below. See Aldrich v. New York Life Ins. Co., 121 .App. Div. 18.
Judgment for the defendants dismissing the complaint, with costs.
Judgment for defendants, with costs.