| NY | Jan 16, 1877
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *211 The only question arising upon this appeal is whether at the time when the plaintiff and defendant entered into the contract contained in the policy of insurance, upon which this action was brought, there was another policy in the Andes Insurance Company, in violation of the contract between the parties. The defendant's counsel claims that Goggin acted as the agent of the plaintiff, and the application sent by Goggin to the defendant being the application of the plaintiff, the statement and warranty that there was no insurance was the plaintiff's, and as the Andes policy was in force at the time, that the warranty was false and the policy void.
Assuming that Goggin was the agent of the plaintiff, we think it does not aid the defendant, for if Goggin acted in that capacity, the insurance would not take effect until the application was accepted by a return of the policy, and the clause in the policy on this subject can have no effect where the plaintiff or his agent solicits insurance. As the case stands it appears that the plaintiff applied for the insurance on the twenty-first of March, to Goggin, who on the same day made out an application, and signed it in the plaintiff's name without the plaintiff's knowledge. This was forwarded by mail on the next day, and on that day or the next day afterwards, and as it is somewhat uncertain, we have a right to assume the former, the plaintiff surrendered to Goggin, the agent of the Andes company, the policy which the plaintiff held. When the application was made the previous day, it was agreed that the policy should be, and it was, surrendered accordingly, accepted and placed by Goggin among other insurance policies of that description. Here was a valid acceptance by the agent of the Andes company on the very day that the written application was forwarded by the defendant, and as the precise time when the policy was received by Goggin, is not made to appear, it is highly probable and the fair intendment is, that the surrender of the Andes policy was accepted before the policy of the defendant was returned to Goggin, and as the proof clearly established before it was accepted by the plaintiff. The Andes policy was, therefore, canceled before the contract *213 was consummated, and there was no other insurance at that time upon plaintiff's buildings.
Upon the hearing of the former appeal, this court held that the surrender by the plaintiff of the Andes policy to Goggin, and its acceptance by him as the agent of the Andes company, with the intention on the part of both, that it should no longer be a contract between the plaintiff, and that company, was in effect a cancellation of it, and even if Goggin did not send it to that company, as he was to do, it did not affect the plaintiff, for he had put it in Goggin's power to do so, and as to the plaintiff the contract was annulled. This would seem to cover entirely the case now considered; but the appellant's counsel claims that this case does not come within the former decision, as it is said in the opinion that Goggin, the agent, had before that taken the surrender of policies, and canceled them, and his acts been approved by his principal. It was not intended to hold that the approval of the act of the agent must necessarily precede the surrender of the Andes policy. But, however, that may be, whether the ratification was before or subsequent to the surrender of the Andes policy is not material, for in either contingency with the concomitant circumstances, it is manifest that authority was conferred previously. The proof shows that Goggin had blanks for that purpose, and had taken the surrender of other policies by the direction of the Andes company before the plaintiff's policy was given up. These were subsequently returned to, and accepted by, the Andes company, and the acts of the agent thus ratified and approved by the principal. This confirmation sufficiently establishes that the Andes company had conferred authority for that purpose, and that Goggin was acting within the scope of his powers, when he accepted the surrender of the plaintiff's policy.
If we are correct in the observations made, this case is brought directly within the principle of the decision made upon the former appeal. At least there was sufficient evidence for the consideration of the jury upon the question whether there was a lawful surrender, acceptance and cancellation of *214 the Andes policy, and it was the intention of both of the parties to cancel the same. Nor, as we have seen, does the written application for insurance, signed by Goggin in the plaintiff's name, which was introduced in evidence upon the last trial, change the time when the risk actually commenced, or alter the case materially, so as to affect or impair the validity of the contract entered into for the surrender and cancellation of the Andes policy.
As the judgment may be upheld upon the assumption that Goggin acted as the agent of the plaintiff in the application of insurance, it is not necessary to consider whether it could be sustained, if he could be regarded as the agent of the defendant.
No ground being shown for the reversal of the judgment, it should be affirmed.
All concur.
Judgment affirmed.