SAGE WAGON VO.
(Oircuit Oourt, D. Indiana.
AUTHORITY OF FIRE INSURANCE AGENTS-POWER TO WAIVE PAYMENT OF PREMIUM.
Where the authority of agents of a fire insurance company consists of full power to receive proposals for insurance, to receive moneys, and to countersign, issue, and renew policies, subject to such rules and regulations as may be adopted by the company, and such instructions as may, from time to time, be given by the management, they have authority to waive the immediate pay-, ment of premiums.
2. .I!'rnE INSUHANCE-EvIDENCE OF WAIVER OF PAYMENT OF PREMIUM.
Evidence considered, and held that the acts of insurance agents amounted to a waiver of the immediate payment of a premium on a policy. 3. FIRE INSURANCE COMPANY-WAIVER OF IMMEDIATE PROOF OF Loss. Where an insurance company asserts that a policy has been canceled previous to a fire, it waives all right to insist that the policy has been forfcitlld because the proofs of loss came too late.
Jury Waived, and Trial by Court. Baker cf: Mitchell, for complainants. Duncan, Smith cf: Wilson, for defendants. WOODS, J., The action is upon a policy of fire insurance. The defenses pleaded are-First, that, by reason of non-payment of the premium, the policy had never been in force; second, that the policy had been canceled before the loss occurred; and, third, that the assured had forfeited all right of recovery by failure ·to give notice to the company, and to make proof of the loss, as required by a condition of the policy. The plaintiff, a corporation at Elkhart, Indiana, authorized Defrees & Meader, of Goshen, to procure a stated amount of insurance on the property of the company. Defrees & Meader applied for the insurance to Grubb, J;!axton & Co., of Indianapolis, who were then agents of the defendant, a corporation located at Cincinuati, Ohio, for Indiana north of the Ohio & Mississippi Railroad. On the ninth day of May, 1881, Grubb, Paxton & Co. prepared and sent by mail to Defrees & Meader, for the plaintiff, three policies, (of as many different companies,) including that sued upon. By its terms, this policy was made to take effect at noon of May 9th, the date of the policy. It was received by Defrees & Meader in due course of mail, but, on account of the premium charged being less than the establisbed local rate at Elkhart, they returned it, with the other policies, to Grubb, Paxton & Co., with a request that corrected policies of the same date be sent instead. The same policies were corrected by Grubb, Paxton & Co. in respect to the cbarges of premium, and, without other change, remailed on May 12th to Defrees & Meader, who received and delivered them on or before May 17th to the treasurer of the plaintiff, and received of him the premium named. In their letter of May 9th, with which the policies were first sent, Grubb,
BALL & SAGE WAGON CO. V. AURORA F. & III. INS. CO.
Paxton & Co., after naming the respective policies and their amounts, one each being in the Aurora, Indiana, and Home, say to Defrees & Meader: "To your credit 15 per cent. on Aurora and Indiana; 12t per cent. on Home policy." On May 13th, upon receipt of a memorandum showing the issue of this policy, the defendant, by its secretary at Cincinnati, notified Grubb, Paxton & Co. to cancel the policy immediately; but, instead of obedience, and without notifying the plaintiff or Defrees & Meader of this order, they wrote to Defrees & Meader br "printed forms, Ball & Sage Wagon Co.\; paper.mill;" their intention being to place an equal amount of insurance upon the property in another company, before canceling the policy in suit. On the 17th, Defrees & Meader answered, sending blanks as requested, and asking the placing of $2,000 more insurance on the property, in some good company. On the 19th, Grubb, Paxton & Co. replied, promising to forward a policy for $2,000 more on the pa. per mill, either by to-morrow or day after. On May 20th, the property insured burned, and on the 23d, Defrees & Meader, acting for the plaintiff, wrote Grubb, Paxton & Co. to the effect that a total loss had occurred, naming the policies aud amount of each, including the one in suit, and on the same day sent them a telegram asking if they had placed insurance on the paper.mill, and if so, when and in what company. This had reference to the additional insurance which had been applied for. On the same day, May 23d, Grubb, Paxton & Co. wrote to Defrees & Meader, saying: '''Herewith find policy No. -, Atlas Ins. Co. $2,000, Ball & Sage Wagon Co. The Aurora Insurance Co. ordered their policy canceled about a week ago, and we have put said amount, $1,500, in Rochester German Ins. Co. Please advise if the mill which burned at Elkhart is this mill we just insured, (Ball & Sage.) If so, we want you to consider Aurora policy canceled, and hold the Rochester German liable for it. We have policy in office here. reason why we held Rochester Germall policy here is because we did not wis!> to trouble you more than we could possibly help in policies. ana. first wished to find if the R. G. policy would stick. Very truly," etc. On May 24th they telegraphed Defrees & Meader: "Has that mill burned? Return the canceled policies. Answer." To this, on the same day, Defrees & Meader answered: "Yes, totally. Answer our telegram." And to this Grubb, Paxton & Co. replied by telegraph also: "We have placed only Indiana, Home, and Atlas. You had notice of can cellation of Aurora and Rochester German. Return these two policies at once. You have our letter. Deliver no policies now to parties." On the 25th they wrote Defrees & Meader, saying: "We are sorry you did not answer the requirements of the business (if you had delivered the Indiana and Home policies to the assured) by giving notice at once of the fire. You will please return the Aurora policy and the Atlas. as they are plainly not in force,-the one being canceled on the thirteenth inst., the other written on the 23d. Please do this promptly. as you cannot help but acknOWledge the justice of this."
This Defrees & Meader answered on the 26th, exonerating them. selves of all blame; and on the 28th wrote again, inclosing a draft for $75.01, stated to be "in full of our account with you for insurance in Indiana, Home, and Aurora, as per statement appended." To this Grubb. Paxton & Co. replied by letter of the 30th, saying:
"Your favor of inst,. received, inclosing check in payment of premiUlll on paper-mill, $75.01 net. We will endeavor to get the matter straightened up; will write the Uochester German and Aurora the facts, and let you know. so as to get proofs made right. if we can get it settled between the two companies. We used our best efforts to get the line placed."
And on June 4th again wrote, saying:
"We return to you herewith the premium (you included in your remittance of balance due us) for Aurora policy, canceled, as we wrote you. Find inclosed $31.88. The policies we placed are the Home and Indiana. Please return the Aurora policy as requested. We, as brokers, use our best efforts to place lines for our customers,but cannot bind longer than until such time as they can acceptor decline."
pany immediately after the fire, an,g, as soon &s possible. render a particular account and proof thereof," etc.
This was sent as a registered letter. On June 8th, Defrees & Meader answered by a registered letter, in which they returned the letter of Grubb, Paxton & Co. unopened. This letter Grubb, Paxton & Co. refused to take from the post-office, where it lay until August, when it was returned to Defrees & Meader, at Goshen, where they held it unopened at the time when this action was commenced in the Elkhart circuit court, and continued to hold it until on the hearing it was produced in this court, and by order of the court opened, and the money delivered to the clerk of this court for final disposition, accord. ing to the order of the court. Neither the defendant nor its agents, Grubb, Paxton &00., ever gave notice to or made any request of the plaintiff to furnish proof of loss, in accordance with the suggestion or promise contained in the letter of May 30th. On September 4, 1881, hefore the commencement of this action, sent to the defendant at Cincinnati proof of the Joss, to the which rio obje<Jtion is or has been made, except that it came too late. In respect to proof of loss the policy provides that"Personsha,virlg a claim under this policy shall give notice to the comThis polic,y: also. contains .the following:
or persons other''than duly appointed and authorized agent of this company. such person' or persons be deemed to be the agent of the assured. and this companyshall not be liable, by virtue of this policy, or any renewal thereof, until the premiumtherefoi be actually paid to the company."
" It is'further agreed that, if this policy has. been procured by any person
Theauthorits,Of Grubb,Paxton & Co., as agents of this company beenwithin their territory, 'is shown to
. "Full power to receive proposals for insurance, to receive moneys, and to countersign, renew Ilolicies of insurance of the company, subject to such rules and regUlations as are"Ql' ,may be adopted by the company, and
BALL & SAGE WAGON dO. V. AURORA F. & M. INS. 00.
such instructions as may time to time be given by the manager of the company ,at Cincinnati." In respect to the defense of cancellation, counsel for the defendant admit that there is a failure of proof, but strenuously insist that the policy never became operative, because the premium had not been paid to the company before the fire; that there was in fact no waiver of this payment by the company, or by their agents, Grubb, Paxton & Co., and that if the agents did intend a waiver they had no power to bind the company thereby; that the provision quoted from the policy constituted a restriction upon the power of all agents, whether general or special, of which the receiver of the policy was bound to take notice; that this restriction was a part of the agreement, which could not be effected by any contemporary parol agreements or understandings, especially when had with an agent only of the company. In support of this view, counsel cite the following authorities: Com. Mut. M. Ins. Co. v. Union Mat. Co. 19 How. 318; Grace v. Amer. Cent. Ins. Co. (U. S. Sup. Ct.) 17 Reporter, 1; S. C. 3 Sup. Ct. Rep. 207; Thompson v. Ins. Co. 104 U. S. 252; Ins. Cos. v. Wright, 1 Wall. 456; PJrtridge v. Ins. Co. 15 Wall. 573; Bush v. Ins. Co. 63 N. Y. 531; Merserau v. Ins. Co. 66 N. Y. 274; Bradley v. Potomac Ins. Co. 32 Md. 108; Catoir v. Amer. Ins. Co. 83 N. J. Law, 487; Western Assurance, etc., v.P. Ins. Co. 5 U. C. App. Rep. 1!J0; v. Payl'tte Ins. Co. 3 Allen, 360; Bouton v. Amer. Ins. Co. 25 Conn. 542; Security Ins. Co; v. Pay, 22 Mich. 461; Ins. Co. v. Norton, 96 U. S. 234; Bennecke· v. Ins. Co. 105 U. S. 355; 30 Eng. Rep. 816. Counsel for the plaintiff contend that the power of the agent to issue the policy included the power to fix the time when the insurance .should begin and end; that this was done in this instance by writing in the blank spaces left in the printed forms provided by the company, the words and figures, "9-May;" that, when there is inconsistency betweAn written parts of an instrument and printed parts, the formermust prevail; that the delivery of the policy in this shape, and the subsequent conduct of Grubb, Paxton & Co., showed clearly an intent on their 'part to give Defrees & Meader a short credit tor the premium, and that the policy should take immediate effect; and that this, in law as well as in fact, constituted a waiver of the stipulation for payment before the policy should be in force. In support of this view the following authorities are cited: Miller v. Life Ins. Co. 12 Wall. 303; Sheldon v. Atlantic Ins. Co. 26 N. Y. 460; Wood v. Poughkeepsie Ins. 00. 32 N. Y. 619; Boehenv.Williarnsburgh Ins. Co. 35 N. Y. 131; Botvrn'ln v. Ins. Co. 59 N. Y. 521; Marcus v. Ins. Co. 68 N.- Y. 625: Goodwin v. Ins, Co. 73 N. Y.480, 491; Bouton v. Amer. Ins. Co.'25 Conn; 542; Behler V. GermanIn8. 350; May, InS. p. 434,§ 136. ' Without entering upon a review of the authoritjes, it is enougb to say here that in the judgment of the, court the agents of the company
who issued the policy in suit had authority to waive the immediate payment of the premium; and that they did so in this instance is, in the light of the evidence, too clear for reasonable dispute. In respect to the proofs of loss it is probably true, as claimed by counsel for the plaintiff, that, by asserting a cancellation of the policy, the defendant waived the right to insist upon these proofs. Pm·tsmouth Ins. Co. v. Reynolds, 32 Grat. 613; Allegre v. Maryland Ins. Co. 6 Har. & J. 408; Graves v. Ins. Co. 12 Allen, 391; Nor. cf; N. Y. Transp. Co. v. Ins. Co. 34 Conn. 561; Girard Co. v. Ins. Co. cf N. Y. 91 Pa. St. 15; Bennett v. Ins. Co. 14 Blatchf. 422; 9 How. (U. S.) 196; May, Ins. § 469. But whether there was, in this case, a complete waiver or not, it is quite clear, under the circumstances in proof, that the plaintiff should be held to be excused for the neglect, if neglect it was, to forward the proofs sooner. Other points have been suggested in behalf of the defense, but if good in law they have no sufficient support in the evidence. is due t.he plaintiff $1,730, for which let judgment go.
In re SIGNER, Bankrupt.
(Di8trict Court, S. D. New York.
5110, SUBD. 5-LoBB OF MONEY BY GAMr.i'G. Under subdivision 5 of sectiou 5110, Rev. St., it is competent for objecting creditors to prove, in opposition of the bankrupt's discharge. his loss of money by gaming at any time since the bankrupt act, and within the period at which any of his debts arose, or within which it may affirmatively appear or be reasonably supposed that his assets which ought to and would have come into the assignee's hands were affected through such loss.
Bankrupt's Discharge. BROWN, J. The discharge of the bankrupt is resisted in this case upon the ground, among others, that he had lost· part of his property in gaming, contrary to subdivision 5, § 5110. The qnestion has been certified to the court whether any evidence should be admitted in support of the specification of the loss of money by gaming prior to the time when the objecting creditors' debt arose, as shown by the proof of debt, which was in 1818. The evidence cannot be restricted to the period since the objecting creditors' debt accrued; it must, at least, the whole period .covered by any debts from which the bankrupt is sought to be discharged.. The clause of the statute which make!! the loss of any part of the bankrupt's property by gam· ing It bar, is.not limited as to time; nor is it qualified by the precE\ding language of the section, requiring an intent to defraud creditors. The reasoning in theCa,(le of Burk, 8 N. B. R. 296, 300, is not, therefore, applicable. In th.e Case of Jones, 13N. B. R. 286,
UNITED STATES LOWELL,
J., considered that an objection under this subdivision might be valid "if the acts were at a time so recent that they would affect any of the creditors who can come in under the bankruptcy." Further on he observes that "the fraudulent payments, conveyance, or loss by gaming do not appear to be thus limited, and seem to include all such payments, conveyances, and losses as have diminished the assets which otherwise would have come to the assignee." The tenth subdivision of section 5110 provides that conviction of a misdemeanor under the bankrupt law shall prevent a discharge. Could it be held that such a conviction, to be a valid objection, must have occurred after the creditors' debt was contracted? It seems to me not, but that any such conviction since the passage of the bankrupt act would debar the bankrupt of any discharge under it, though the debt were contracted afterwards; and I am inclined to think that the same extended reach might be given to the other parts of section 5110, which are not limited in time, or to their effect upon specific creditors. It is by no means clear that it was not the purpose of the bankruptcy act to deny its privilege of discharge to all persons who, subsequent to its passage, should by their own acts violate its conditions. In re Gretiew, 5 N. B. R. 423; Inr6 Keefer, 4 N. B. R. 389; Peterson v. Speer, 29 Pa. St. 478. If the act were regarded as a permanent law instead of a temporary one, it might seem an unreasonable construction, and not within its presumed intention, to hold a discharge barred through loss by gaming, where the loss was so long anterior to the bankruptcy as to have no actual relation to the debts or assets involved in the bankruptcy. But if a division of time since the act were attempted, it would often be difficult to fix. any certain rule. It is not necessary to determine the whole question at this time. The evidence as to when the baukrupt lost any of his property by gaming, must, however, be admitted as far back as the origin of any of the debts of the bankrupt; and also to such anterior period,since the passage of the act, in which it may affirmatively appear, or be reasonably supposed, that the assets of the bankrupt which ought to and would have come into the assignee's hands were depleted through such losses.
(Circuit Oourt, D. New HampBhire. May 13, 1S84.)
An indictment need not set out the law upon which the ofJeusewasfounded.
If the indictment contains allegations, recitals, or averments that make it evident that the grand jury acted in finding it upon a statute which had lJeen repealed, the judgment must be arrested.
2. SAME-STATUTORY OFFENSE-STATUTE REPEALED-ARREST OF JUDGMENT.