84 Ind. 347 | Ind. | 1881
The complaint of the appellee alleges that in May, 1860, he was appointed appellant’s agent atEvansville;, that, by the terms of the contract, he was to solicit insurance ; that he was to receive, as compensation for his services,, fifteen per cent, on the first premium paid by the person insured, and five per cent, on each renewal premium; that this agreement was an oral one until April 21st, 1874, when it was reduced to writing, but no change was made in the terms of the agreement, except that the compensation was increased; that it was also provided in the contract that the contract was to continue so long as the appellee properly discharged his duties; that he secured a great number of policies; that 'there was due him for renewal premiums theretofore collected one hundred and twenty-five dollars; that he was dismissed without cause, and in violation of the terms of his contract; that at the time of his dismissal there were policies outstanding, which had been secured by him under the contract, upon which the annual premiums paid to appellant are $8,000 per annum; that the commission thereon is $400
It is objected that the complaint is bad because the damages claimed are too vague, remote and conjectural to be recoverable. The complaint is certainly good as to the sum of $125, the amount of the commissions upon premiums collected prior to the dismissal, and this would make the complaint strong enough to repel the demurrer; for, if a complaint ■entitles the plaintiff to some relief, it will be upheld, although it may not entitle him to all the relief prayed. Bayless v. Glenn, 72 Ind. 5.
An agent who is wrongfully dismissed from service may maintain an action for a breach of contract. He may sue at ■once, and is not bound to wait until wages or compensation would have accrued had the contract not been broken. Indéed, the law is that he can not split his demand into parts, but. must combine in one action claims for past services and for damages resulting from the breach of the contract, although they are prospective in their character. Richardson v. Eagle Machine Works, 78 Ind. 422 (41 Am. R. 584). In Ensworth v. New York L. Ins. Co., 1 Bigelow Ins. Cases, 645, and Lewis v. Atlas M. L. Ins. Co., 61 Mo. 534, the principle is applied to cases very like the present.
It may be true, as appellant asserts, that it had a right to dismiss the appellee at any time, and yet a right of action still exist. It would exist, beyond all question, for the commission upon the premiums collected prior to the dismissal, and, in our opinion, is not restricted to such commissions. The services of the agent- in securing policies, upon which future premiums would in the ordinary course of business be received by the appellant, were of value, and that value should be paid to the agent. The service rendered by the agent gave him some claim for compensation, although the payment of the premiums would not be made until some
The fourth paragraph of the answer alleges that the appellee, in violation of the terms of his contract, failed to account, for and pay over money as soon as he collected it, and that at the time of his dismissal he had in his hands $119.92 of appellant’s money. The appellee replied that he had been directed to make and transmit a monthly report to the general agent of the company and to retain the money collected until a draft was drawn upon him by the general agent; that the money in his hands had been reported and was held subject to draft, and that he was ready and willing to pay over the money whenever drawn upon. It was further alleged that the practice was a uniform one and had existed since the commencement of the agency.
The reply is good. It shows a contemporaneous construction of the contract by the parties. It is proper to show how contracting parties have themselves construed a contract by their acts, and courts will enforce the construction adopted, by them. Reissner v. Oxley, 80 Ind. 580; Johnson v. Gibson, 78 Ind. 282; Phœnix M. L. Ins. Co. v. Hinesley, 75 Ind. 1. If appellee pursued the course directed by the appellant, and the practice was uniform and continuous, he certainly was guilty of no wrong justifying a dismissal.
The reply is not a departure. A replication which fortifies the complaint, or which does not quit the original cause of action, but avoids an answer, is not bad for departure. The appellee alleged that he was dismissed without cause; the appellant answered that there was cause and set it forth, and
Witnesses, shown to be skilled in matters of insurance, and • to be familiar with the values of renewals of policies, were allowed to state the value of the appellee’s contract. We think the evidence was competent. Won-expert witnesses may give opinions upon matters of value. Bowen v. Bowen, 74 Ind. 470; Johnson v. Thompson, 72 Ind. 167 (37 Am. R. 152). It is certainly competent for skilled witnesses to give opinions upon matters of value in cases where the thing to be estimated has a peculiar value, and where, as in this case, the value can only be known to persons skilled in a particular business or profession. In the present case, no one who had not a knowledge of the probabilities of human life, and of the average number of renewals in a stated number of policies, could form' or express an intelligent opinion of the value of the appellee’s contract at the time of the breach.
It may be that the questions as asked were too broad in that they might have allowed room for speculation as to what future business the appellee would probably have secured; but the court instructed the jury, that “Some evidence has been or may have been given touching the value of the contract in respect to policies of insurance which the plaintiff might have obtained subsequent to the time of his removal, and in respect to the commissions which he might have received under his contract from premiums on such policies. I direct you not to consider any such policies, or the interest of the plaintiff in such prospective policies. You will consider only the plaintiff’s interest in such policies as were actually in force at the time the plaintiff vus removed from the agency in case he was wrongfully removed.” And this, we think, prevented any improper effect from being ascribed to the evidence elicited by the questions.
We find, upon examining the evidence, that the grounds
There was no error in refusing the first instruction asked •by the appellant. If it were true, as asserted, that the appellant might discharge the appellee at any time without cause, it could not, by exercising that right, deprive him of compensation previously earned. Although a principal may have a right to dismiss his agent, the dismissal can not operate to deprive the agent of what is due him for past services. The appellee was undoubtedly entitled to compensation upon premiums collected before his discharge. Whether, if rightfully •dismissed, he was entitled to commission upon renewal premiums is a question we need not, and do not, decide; but, whether entitled to such renewal premiums or not, the instruction was entirely too broad, for it would, if given, have •conveyed the impression that the right to discharge precluded any recovery. The instruction asked was likely to mislead the jury, even if the right to dismiss be conceded, and such instructions should not be given. Thompson Charging the Jury, sec. 91. Instructions must not only assert propositions of law correctly, but they must be so framed as to be applicable to the particular case made by the evidence. Bissot v. State, 53 Ind. 408.
The refusal of the court to give the sixth instruction asked by appellant is not assigned as a cause for a new trial, and,
It is claimed that the court erred in denying appellant’s motion for a judgment upon the answers to interrogatories returned by the jury. We copy such of the interrogatories and answers as are necessary to a full apprehension of the questions presented:
“ Is not the cláim of plaintiff for damages in this action based upon the following conditions and contingencies, viz.: 1st. That the plaintiff will live and be able to perform the necessary labor of collecting renewal premiums and remitting the money for the same to the defendant? Answer. Yes. 2d. That the policy-holders will live? Answer. Yes. 3d. That the policy-holders will continue to pay their renewal premiums ? Answer. Yes. 4th. .Are not the damages sought to be recovered dependent upon the- above conditions and contingencies ? Answer. Yes. 5th. Are not the damages speculative, uncertain and conjectural? Answer. No. 6th. How many policies obtained by the plaintiff were in 'force on the 21st day of April, 1874? Answer. 146. 7th. How many new policies were obtained by plaintiff from April 21st, 1874, to May 1st, 1879? Answer. Four. 8th. How many policies obtained by plaintiff were in force on the 1st day of May, 1879 ? Answer. 88. 9th. Does not the value of plaintiff’s contract ■depend upon the value of the renewal premiums? Answer. Yes.” '
It is argued that these answers show that the damages are prospective, speculative and conjectural, and are not recoverable.
There are many cases closely analogous to the present, sustaining a right to prospective damages of a character not ■more speculative or conjectural than those here claimed. In
It is no doubt true that merely prospective profits can not, as a general rule, be recovered, but the appellee does not claim prospective profits; he claims the value of services already rendered, and from which the appellant has derived a present benefit, and from which it is probable future benefits will also be derived. Niagara Fire Ins. Co. v. Greene, 77 Ind. 590.
It is also true that merely speculative or conjectural damages can not be recovered, but appellee’s damages are not merely speculative. He had secured policies upon which there is a very strong probability that renewal premiums will be paid. The act which secured the policies has been performed and the policies are in existence. The basis of the right to damages exists; it is not to be built in the future. The only question for the future to solve is, how many policy-holders will renew and pay premiums ? or how many jxfiicies will lapse? This probability, like all others of an analogous character, is to be determined upon evidence. Certainty is not attainable, but this may be said of all kindred questions. Because absolute certainty is not attainable is no reason for
' Judgment affirmed.