260 MAY
FEDERAL REPORTBB.
v.
WESTERN ASSUR. CO.l
(Oircuit Oourt, lJ.ltfinnesota. FIRE INSURANCE-AuTHORITY 01l' AGENT-LoBB.
1886.)
Motion for New Trial. The opinion states the facta. Wilson d: Lawrence, for plaintiff. Cole d: Bramhall, for defendant. BREWER, J. In this case it appears that the plaintiff, Mr. May, went to Judge Ames, an insurance agent in Minneapolis, who had been carrying his insurance for a series of years, and told him that he wanted $20,000 of insurance. Judge Ames knew the condition of the property, and he afterwards handed in to the plaintiff $20,000 of insurance; but Judge Ames, it seems, was unwilling to carry that amount in the company or companies that he represented, and therefore went to the agent of the defendant, Mr. Seeley, and offered him $2,500 of it, and Mr. Seeley took the insurance, wrote out the policy, and sent it to Judge Ames' office, and Judge Ames thereupon delivered it to the plaintiff. Mr. Seeley, as the agent of the defendant, did not know the condition of the risk, and he had no communication with the plaintiff. The question was whether Judge Ames was the agent of the plaintiff to solicit the insurance, and whether Mr. Seeley, as agent of the defendant, should have been informed by him of the condition of the risk, or whether the defendant company was bound by the knowledge that Judge Ames had,-whether his knowledge of the connition of the risk, under the circumstances, was the same as the knowledge of their agent, and Lindingupon the company. It seems to me, from whichever stand-point you approach this case, that it would not be fair to release the defendant company from liability. The plaintiff did not go to an insurance broker to employ him to solicit insurance. He never thought of employing an agent to act for him; but he, as principal, wanting to buy insurance, went to a man who was selling insurance, and proposed to buy from him $20,000 worth of insurance. Judge Ames proposed to sell it to him, and they each stood in the relation of principal in that negotiation. There is no pretense that when the policies were delivered to the plaintiff any actual notice was given him that Mr. Seeley alone was the 1 Reported
by Robertson Howard, Esq., of the St. Paul bar.
STATE ". 1IORSB.
i61
agent of the defendant, and the fact that Seeley's name was written across the back of the policy as agent of the defendant is not sufficient to charge the plaintiff with such knowledge. It seems to me that something more was necessary in order to change the relations the parties expressly assumed towards each other than the implication which would arise from the fact that another party's name was written on the policy as agent. Now, approaching it from the stand-point of the defendant company. They put Mr. Seeley there as general agent. If he sends out a man to make an examination of a risk, and accepts the representations made to him by such subagent, the company is bound by it. It is not to be expected that a general agent, located in a city like Minneapolis, can personally go and examine all the risks offered him. The business must, of necessity, be done through subagents principally; and the testimony is that the custom was for agents to go to other agents, and divide insurance with them, when they had more offered them than they cared to carry themselves. Mr. Seeley testifies that that was his custom. If the agents coming to him took part of the risk for their own companies, he relied on that and wrote out the policies. It seems to me to be a very natural custom, and if the insurance company is willing to allow its general agent, put in charge there, to determine what means of investigation he will rely upon, and he relies upon the investigations or statements of other agents, the insurance company has no right to complain. Whatever Mr. Seeley does within the reasonable scope of the powers committed to him is binding upon the company. If, instead of mak· ing an examination himself, he prefers, or is willing, to take the representations of another insurance agent, the company is bound by that act. The particular case cited by the appellant from 58 Md. does not seem to me, by any means, to touch the points in this case. I think the ruling made by my Brother NELSON was right. Motion for new trial overruled.
STATE ex 'fel. FELDKAMP v. MORSE and others.1 (Oircuit Oourt, E. lJ. Missouri. April 5,1886.) ASSIGNMENTS FOR BENEFIT OF CREDITORB-PREFERENCES-REV. ST.
Mo. § 354. A debtor has a right to prefer one creditor to the exclusion of others, but where the preferred creditor receives the bulk of the debtor's property in payment of his claim. knowing that the debtor is about to make a general assignment, the assignment to him is void, under the Missouri Statutes, and he can only take his share under the general assignment.
At Law. lReported by Benj. F. Rex, Esq., of the St. LouIs bar.
262
FEDERAL REPORTER.
Suit upon an indemnity bond given the United States marshal to indemnify him and F. Feldkamp against all damages and costs that might accrue to them by reason of the seizure and sale of certain property, claimed by said Feldkamp, to satisfy an execution issued in the case of Morse v. Frank. The other material facts are sufficiently stated in the charge to the jury. A. Binswanger, for plaintiff. Dyer, Lee cf; Ellis, for defendants. TREAT, J., (aha'rging jury orally.) Gentlemen of the jury, you understand the main inquiry before you is whether this property belonged to Feldkamp, which was seized by the marshal to pay the debt of Morse. If you think it was Feldkamp's property, the defendant must pay back the value of, that property, with interest from the time it was taken, the valuation being fixed according to the appraisement at $1,544.25,-the parties differing with regard thereto. But the next inquiry is this: Was this a transaction in good faith, by which Mr. Feldkamp, being a creditor of Frank & Sons, took this property in payment of a debt justly due him? or was it a fraudulent transaction, whereby he was to take possession of this property for the benefit of Frank & Sons, and through contrivances thereafter, as by having a new firm formed, having some other name, and turning the property back to that firm in order to cover the property for the benefit of Frank & Sons? . In examining these questions there is !Lnother element which is worth while always to consider: What was the value of Frank & Sons' estate? What were they to do with it? Did they turn it out to one or two creditors? It seems there were two creditors who reo ceived the main portion of the goods, leaving out of the transaction all the other creditors. The amount of indebtedness is stated to be between $10,000 and $11,000. Two of the creditors secured their demands, and the others secured what they could get out of an assignment. Now there have been before this court for the last two years a great many inquiries in regard to these matters, and we have been waiting for the supreme court of the state of Missouri to interpret the state statute. This court has held, and will continue to hold, until the state statute is interpreted otherwise, that where parties come, just on the eve of a collapse, and take the estate, knowing that an assignment is about to be made, they cannot hold against other creditors, because the law as interpreted by this court is that thev shall all share alike. A. man, in the ordinary course of business, bas a right to turn out goods for the payment of his debts; but when the final collapse is impending, and he knows it, a transfer of the entire estate to one creditor cannot be upheld, and the latter can only take his share of the estate under the subsequent assignment. The court mentions this, because in considering this matter you
DANA fl. PARKER.
263
must look back and consider the statUB of the parties in this CBse. Here were Frank & Sons, and Feldkamp, a friend, as it seems, who had helped them along. Very naturally they would wish to secure him in preference to anybody else. If he knew that they were about to go overboard, and he chose to swerp the bulk of the assets in liquidation of his demands, and leave but a little fragment of the rest, . the court will pronounce it a voidable transaction. . If you find for the plaintiff, you must give him the value of these goods from the eighth of April last, with interest to the present time. "fr. Binswflllger. Will your honor instruct the jury that they had the right to prefer one creditor to the exclusion of others? The Court. Certainly; unquestionably. I think the jury under· stand that; but when that particular creditor knows this preference is to be accompanied by an assignment right away, and takes the whole of the estate, he cannot hold it. This thought has been run· ning through my mind all the while. I did not think it worth while to trouble the jury in regard to it. What I mean is this: Mr. Feldkamp, as far as this case discloses, was an honest creditor for $2,750, and the assignment taking place on the very day, or a day or so afterwards, and he, knowing that there was to be an assignment, should have taken a fair division with the other creditors; but he wants the whole, and the court says he cannot have it; that he must come in and divide with the rest. Mr. Binswanger. Morse did the salUe thing that Feldkamp did. The Court. We will attend to that. There may be a supplemental motion. Morse & Co. cannot do it. They will all have to come in on an equitable proceeding in connection with this judgment, and divide all around fairly. Verdict for the defendants.
DANA,
Ex'x, v.
PARKER.
(Oircuit Court, D. Ma86achuseita. ACTION-PARTIES-JOINT BOND.
April 9, 1886.)
8. L. B. and E. B. became sureties on a trustee's bond. and P. and H. ex ecuted a bond as 8ureties to indemnify them. E. B. indorsed on the trustee', bond an agreement to indemnify S. L. B. Subsequently the executrix of E. B brought suit on the bond against P Held, that as it dId not appear that S. L B., the joint obligee, was not living, the plaintiff was not the proper party t( sue, and that the suit should be dismissed.
At Law. A. S. Wait, for plaintiff. Hutchins « Wheeler, for defendant.
