Wood v. Prussian National Insurance

| Wis. | May 3, 1898

Maeshall, J.

The sole question for consideration is, Does the evidence warrant the findings of the trial court that an oral agreement was made between plaintiff and defendant, whereby the latter became bound to keep plaintiff’s property, described in the policy of January 5,1894, insured for $500 on the terms and conditions mentioned therein, till released therefrom by plaintiff, or by reasonable notice to him by defendant of an intention to discontinue such insurance? Such findings are based on the evidence of plaintiff and A. W. Dibble, defendant’s agent, that some time in 1893 they entered into an agreement to the effect that Dibble, who was agent for several insurance companies, should look after such insurance as plaintiff might elect to place writh him and not allow any policies to expire in his hands without a renewal thereof in the same or some other company. Plaintiff testified in language substantially as follows: I stated to Dibble I wanted it distinctly understood that he would never allow a policy to lapse in his hands; that as soon as they expired I wanted him to rewrite them; that if the company he was writing for objected to renewing the insurance, he should let me know immediately or place the insurance in another company. He said he would do so'. Dibble testified in language substantially as follows: He was to give me a line of insurance and I was to keep the policies renewed in such companies as we should agree upon, and not to allow any policy to lapse without notice from either one side or the other. The evidence given further was to the effect that Dibble placed $500 of insurance on the property described, in the defendant company, January 5, 1894, pursuant to the aforesaid agreement, and renewed such insurance January 5, 1895, and that by oversight on his part he failed to renew the same January 5, 1896, or to keep the insurance alive in any other manner, and that no notice was given by either side to terminate such arrangement.

The evidence mentioned in the foregoing shows clearly what occurred between plaintiff and Dibble, upon which the court found that there was a contract made between plaintiff and defendant, binding upon the latter, to renew the policy issued January 5, 1895, or seasonably to notify plaintiff to the contrary, or place the insurance in some other company. It is not claimed that the contract, when made, specified any particular company or companies that should carry the insurance, or that it was other than an agreement to the effect that the agent, Dibble, would keep such insurance alive as plaintiff would place in his agency, till the termination of the arrangement between them upon reasonable notice of one side to the other.

It has been repeatedly held by this and other courts, and is elementary, that a binding oral contract of insurance may be made by an insurance company acting through its authorized agent, without payment of premium, issuance of policy, or report to the company. John R. Davis Lumber Co. v. Scottish U. & N. Ins. Co. 94 Wis. 472" court="Wis." date_filed="1896-11-24" href="https://app.midpage.ai/document/john-r-davis-lumber-co-v-scottish-union--national-insurance-8185356?utm_source=webapp" opinion_id="8185356">94 Wis. 472. No time need be spent on that subject, if it may be said that the question is involved in this case. Suffice it to say that such a contract, to be binding, requires a meeting of minds as to all its material provisions, leaving nothing to be done but to execute it. Was there any such meeting of minds as to the contract in question, or any meeting of minds at all, to which the defendant was a party ? There is the turning point of this case.

One of the essential requisites to bind a person as principal, in a contract alleged to have been made by him through an agent, is that it be shown that such agent acted within the scope of his actual or apparent authority for such principal, so understood by the other party to the contract. Unless it be shown that there was a meeting of minds on that point, either at the time of the making of the contract, •or by subsequent ratification'with knowledge of the facts, then the essential element to make a binding contract is wanting. McDermott v. Jackson, 97 Wis. 64" court="Wis." date_filed="1897-09-28" href="https://app.midpage.ai/document/mcdermott-v-jackson-8185632?utm_source=webapp" opinion_id="8185632">97 Wis. 64. If the agent acts in his own behalf, though in the line of his employment for the principal, and the other party deals with him in his personal capacity, the principal is a stranger to the transaction and no more bound by it than if the relation of principal and agent did not exist between them at all.

In the light of the foregoing we have studied the record on this appeal in vain for evidence tending to show that the agent, Dibble, acted for defendant in making the contract 'with plaintiff to keep his insurance alive. All the direct evidence shows clearly that the arrangement was made by the agent in his own behalf, and that the duties he assumed were those of an agent for plaintiff solely. Not only that, but the terms of the contract and the nature of tlie duties it imposed on Dibble are all inconsistent with any reasonable theory that he made the contract as agent for defendant, or that defendant became a party to it. It was stipulated that if, on the expiration of any policy, the agent was not able to renew it in the same company, he was to place the insurance in some other company or seasonably notify plaintiff. It will hardly be claimed that plaintiff and Dibble, or either of them, intended that defendant should be bound, on the expiration of any policy issued by it, to replace the insurance in some other company, in any event. The trust in that regard was obviously reposed in Dibble as plaintiff’s agent; yet the contract was entire, so that if defendant was bound by any part, it was bound by all. As another very significant and persuasive circumstance, we note that according to Dibble’s testimony, one of the provisions of the contract was that no policy should be allowed to lapse without notice from either one side or the other. As the companies had not then been designated, in 'which the line of insurance plaintiff purposed giving to Dibble would be placed, clearly, the two sides of the agreement were plaintiff and Dibble.

It is needless to continue the discussion, the question being simply one of fact, as to whether the agent Dibble made the alleged contract as agent for the defendant. The conclusion here reached is that there is no evidence in the record to show that defendant was a party to the alleged transaction, either originally or by subsequent ratification, or that such transaction was other than purely a contract between plaintiff and the agent acting in his individual, not representative, capacity. Therefore, the judgment must be reversed, and the cause remanded with directions to dismiss the complaint.

By the Oowrt.— The judgment of the circuit court is reversed, and the cause remanded Avith directions to dismiss the complaint and render judgment in favor of the defendant for costs, to be taxed according to laAV.