189
FEDERAL BEPOBTBB.
fled if it had told u.s more definitely what 'was done and in what particular directions this large activity expanded itself. However, as most of the important facts are alleged to be within the personal knowledge of the defendant, and the charge is that she has carefully concealed them from the complainant, I think the latter is entitled toa discovery. The demurrer is therefore overruled, and the defendant is allowed 40 days in which to put in her answer.
PLATT,
Assignee,
'V. PRESTON
and another. June 20,1881.)
(Circuit Oourt, S. D. New York. 1. PltAOTlCE- ApPEAL-REv. ST·. §
4982. Under section 4982 of the Revised Statutes, the filing of a petition of appeal is an entry of the appeal. ' 2. SAME-FILING OF TRANSCRIPT-REV. ST. § 4981. section 4981 of the !{evised Statutes, an appenl was claimed by the plaintiff from a decree of the district court, and due notice given to the clerk ·and the defendant's solicitor. On the same day as that on which such notice waa given, a citation was aigned by the district· judge and served. Held, that the transcriM of the record from such district court was filed in time if filed at any during the term at which the citation was made ret!ll'lHtblc:
B. F.· Tracy, for the motion. A. Blumenstiel, opposed. BLA'tClIFORD, C. J. ·I]he decree below was entered October 7, 1880. Under section 4981 an appeal was claimed by the plaintiff, and due notice given to the clerk and the defendants' solicitor, October 15th. On the same day, a citation, returnable on the first Monday of April, 1881, WIliS signed by the district judge and served on the defendant's solicitor; a bond on appeal being also filed and approved, and the appeal allowed. On the twenty-fifth of October a petition of appeal was filed by the plaintiff in this court in due form,and a copy thereof was, on the same day, served on the defendants' solicitor. No transcript of the record from the district court having been filed in this court by May 24th, the defendants move to dismiss the appeal. Thetrallscript was prepared in the district court clerk's office by theeighteenth of March,but the fees therefor were not paid. As an excuse; the counsel for the defenda.nta deposes that he was not intentionally guilty of laches,but delayed filing the transcript because he, believed the case could not be heard before, next He states that he is now ready to file the transcript, and prays to be allowed to do 80.
SIAS V. ROGER WILlJlA.MS INS. CO.
183
,It is provided by section 4982 that the appeal ahall be.'Entered, at the term of the circuit court which shall beheld wi,thin the district next after the expiration of ten days from the time of claiming the
A term of the circuit court began October 18th. If the filing of the petition of appeal was the entry of. the appealj then ,the appeal ,was entered in time, and this court has jurisdiction of it. Perhaps the citation' ought to have been made returnable at the, term commencing the last Monday of February, but that is of no importance now. The defendants permitted that term to pass, and waited until now, in the April term, before making this motion. I think the filing of the petition of appeal was an entry of the appeal within sec.. tion 4982. It is still the April term, .and still in time to file the transcript itt the term to whiohihe citation was returnahle. The plaintiff ought to be allowed to file the transcript now, and ten days will be given for that purpose. " .. An order may be entered granting the motion to dismiss tu1less that shall be done. '
Sus v.
THE ROGER WILLIAMS
INs. Co. 1881.)
(CircUit Court, D. MISTAKE.
NeAll Hampshire. AND
AGENT -.Ii'mIIl INSURANCE,....; .,
.'
C., an agent for several insurance compimies, 'was accustomed to send to' S., an agent for the defendant cOmpany, such applicatiol1-s own companie:! rejected. Th!l course of busine:!s between theIJlwas for C. to forward the apS.:sent C. a policy, which, upon the plication to S., and, if it payment of a premium, C. delivered, andwas allowed a percentage of such premium as his commission. Onll such application was made by a,mortgagEl'e for the purpose of insuring.hisinterest in the.mortgage, but, th.rpugh a mistake as to the law applicable to the case, the application was made to read as thongh it were one made by the 'mortgagor; Payable; in case'ofloBS, to the .The policy was '.issued cOntaining the name of the Jl;I.oi'tgagor as the assured. On .11 bill being :by the, Illortl!agce to. ref9tID the alleg7 in!!: that it was issued to the m?rtgagor through the mistake of who is averred to kave been the agent of the defendant; that there hi\s been a loss and due pi'oof. thei'cof, and praying Jpayment of the 10s8 and general relief, !!flu, that (1) on of th\l defendant; (2) .a mistalrc brought as to the law in the premiseS, of such about by the erronepllS agent, II lawyer, whiieactitlg as tn:ay be corrected in equity. ' PRINCIPAL AND
AGENT. -',',
JV.J. G,opelamd,
The principal iiI !Joundby the knoWledge of his agent obtainedr inJhecourse of his employml1nt.. . ,"-. ,'"
..
','
(9.1' ..
'.
'.' ,
184
FEDERAL REPORTER.
LOWELL, C. J. The plaintiff, residing at Ossipee, held two mortgages upon the house of Abram Cole, at Grafton, and applied, in January, 1874, to Buel C. Carter, of Wolfborough, to insure his interest as mortgagee.· Carter was agent for some insnrance companies and was applied to in that character, and promised to place the risk in a good company. He was not the agent of the defendant company, except that Rufus P. Staniels, their general agent for Concord and the vicinity, had asked him to send to him any rifJks which he did not place in his own companies·. Thia had been done in several instances before 1874,and the course of .bnsiness was for to Staniels, Carter to forward theapplicat!olls or memoranda of a and if it was accepted Staniels sent Carter Ii. policy, which Carter was allowed 10 per cent. delivered on payment of the of the premium for his commission. ' In April, 1874, in pursuanoe of the request of the plaintiff, Carter made out a paper, which may be copsidered to bean application. It is, in form, an agent's daily memorandum. It is headed Germania "Fire Insurance Co.," and proceeds:
"Insurance is granted to Abram Cole, of Gorham, N. H. o on two-story frame dwelling-house, ell and barn connected, occupied in summer season for summer boarding-house, and in winter by assured a!! dwelling-house, $1,500; on furniture therein, $500. Situate near Gorham village, on the road to Randolph, N. H. . Payable, in case of loss, to George B. Frost, [this should be George B. Sias, and is so in the policy,] of Ossipee, as his interest may appear."
On the back are many particulars of the situation of the property, with a diagram, etc. paper appears to have sent to ,Carter's correspondents in Boston and to have been rejected by them, and then to have been enclosed to Staniels, who accepted the risk and issued a policy, dated May 1, 1874, insuring Cole for twosears, payable to the plaintiff as- his interest should appear. This policy he sent to Carter, who sent it to Sias. Carter received the premium and paid it to Staniels, after deduoting his commission. Five hundred dollars was insured on the furniture, in which Sias had no interest. This would seem to be a mistake of Carter's. Sias paid the premium himself and intended to insure his own interest, and had no authority or request from Cole, the mortgagor, to insure the equity. He called Carter's attention to the form of policy and asked him if it insured his interest and that only, and was informed by him that it did. The buildings were destroyed by fire in July, 1875, and Sias brought an action, which was removed to aud tried in this court, Judge Shepley presiding. The company proved that Cole baa
SIAS
v.
ROGER WILLIAMS INS. CO.
185
procured insurance after the date of this polioy, and insisteJ that this act avoided it, under one of the conditions in the policy. The court ruled, for the purposes of the trial, that under the circumstances substantially here above stated; as I understand, the policy might be considered to insure the plaintiff as mortgagee, if the jury believed the facts to be as stated. A verdict was rendered for the plaintiff, which I afterwards set aside, holding that, as the policy was written, there was a breach of the condition against further insurance by the assured, because Cole was the person referred to by' those words. That action is still on the docket. This bill is filed to reform the policy, a.lleging that it was issued to Cole by the mistake of Carter, who is averred to have been the agent of the defendants; that there has been a loss and due proof thereof. It prays payment of the loss and general relief. I understand by the argument that no claim: is made for the loss of the furniture, though the bill is framed to ask for that also. The answer denies that Carter was ever the defend. ants' agent; denies that he ever assumed to act as such, that he ever asked for other or different insurance from what he received, or that the plaintiff himself ever asked for a different kind of policy. As to the loss and proof received, the answer is as follows: ,. The defendant admits that the buildings insured by said policy were destroyed by fire ou the twenty-ninth day of july, 1875,but whether without fraud or not the defendant does not know; and,that Cole made a proof of loss in due form for the proof of his claim, making oath that he was entitled to recover of the defendant, which proof the defendant understands and believes was forwarded to the plaintiff and adopted by him." '
There is no doubt that Carter was a sub-agent of Staniels, the general agent of the defendant company, with authority to forward applications, deliver policies, and receive the premiums. This, cording to the statute law of New Hampshire, makes hil:1. the agent of the company and not of the insured in framing application. Gen. Laws, c. 172, § 3. . "If any company shall issue any policy, upon an application prepared by a third person assuming to act as their agent or otherwise, they shall be affected by his knowledge of any facts relating to the property insured as if t.1\ey were stated in the application."
I cite it from the General Laws for convenience, though tbt\y were compiled after the date of the' policy, being a re-enactment of the former statute. The words "or otherwise" seem rather broa«l. I lJuppose they mean that, although the third person should have made no special representations of agency, he is pro hac vice the agent of the company rather than of the assured. Carter understood, I think,. .
186
fEDERAL REPORTER.
that he was the agent. of Statriels ,in forwarding the memorandum, and Stanielsunderstood that he was the agent of the assured; and Sias never appointed him his agent,or supposed him to be such. Hewae in law and in fact the agent of the cOUlpany. Union Trust Ins. Co. v. Wilkinson, 13 Wall. 922; Ins. 00. v. Mahone, 21 Wall. 152; N ·. J.Life Ins. Co.v. Bakcr,94 U. S. 610. v . There is no serious doub.t .thatCltt:ter .and made a mistake of law, and that Sias madeibthrougb·the representations of Carter, who was a lawyer as well as an insurance agent. In such a case, if Carter WIliS agent of the company, $I mistake of law, brought. aboul by his representations, may ;be corrected in eqtdty, Oliver v.Mutual Com. Ins. 'Curtis, 277 ; Woodhury Savings Bank v. Oharter Oak Ins. Co. 31 Conn. 517; Longhurstv. StOff Ins. Co.. 19 Iowa, 364; Snell v. Ins. 00. 98 U. 8.85.' The defendants insist that there ,was no mutual mistake in this case, because, though it should be admitted that Carter was their agent to forward applications and deliver policies and receive .premiums, still the.ionly risk which they took was that which wa,s presented to them by! the memoranduD;l. To reform the contract would, therefore, be to .makeone which perhaps they never would have made. It is not like a case where the policy is issued to the right person and the company rely .On some failure to make due disclosure, and are met by evidence 'that their agent received notice of the facis. Carter, they say, was not their agent to make the contract, and therefore not their agent to make a mistake in the substance of the contract. This argument, though forcible, assumes too barren a view of the statute ana decisions which r have cited. Under them, Carter was the defendants' agent to receive the proposal, and"whatever he knew is conclusively presumed to have been known by the company; therefore the company ]mew that the application was for insurance upon Sias' interest as mortgagee, and in issuing this policy undertook to comply with the application. To state it in another way, Carter' was the agent of the defendants to complete the contract by delivery of the policy, and they are bound by his representation that the policy insures the plaintiff as mortgagee. The record contains some evidence of the loss and of the proof of loss, and I do 'not understand from the answer and the arguments that the merits the case are disputed. The complainant is therefore entitled t() recover the sum of $1,500 and interest. Decree for the complainant.
181 SIAS
RoOBlf WILLIAMS INS.
Co.
,I'
(Circuit Court, D. Nt/IJJ BamjJ8hitre. June 29, 1880.1 1. ctlowTRACTS-CONSTRUCTION. .· .. Where the meaning of the terms of a written ,contract is clear, evidence of extrinsic circumstanc'es is inadmissible tor the purpose of varying such ing. . 8. SAME-FlUE lNSUR>AlWE-MORTGAGOR AND MORTGAG1l:E.
The policy in suit, by which the dwelling-house and furniture of C. was insured, was payahle,. in case of loss, to S. One of the conditions in the policy that if the assured should sUbsequently make any other imlUrance on the property, without the assurer's cousent, the policy should be void. There was evidence that S., the plaintifi, held a mortgage on.thebouse, and that he prpcured the insurance and paid the premium. C. procured insurance on his interest as mortgagor after the date of this policy.. Held,the meaning of the contract clearly is that C. is the assured; and, this being so, evidence of extrinsic circumstances is inadmissible to change it.
By the policy in 8uit, Abraham Cole was insured $1,500 on his two· story dwelling-house, ell, and barn connected, occupied in the sum· mer season for a summer boarding-house, and in the winter by the assured as a dwelling-house, situated near Gorham, New and $500 on household furniture in the 'bouse and ell, pa.yable iri case of 10S3 to George B. Sias, "as his interest may appear." [t stipulated that "if the assured shall have, ot shall hereaftet any other insurance upon the property insured, or any part thereof, without the consent of the company in writing, IJ the policy should be void. There was evidence that Sias, the plaintiff, held a mortgage on the house j that he had procured the insurance through' a sub· agent of the company and paid the premium. The principal agent, who issued the policy at the request of the sl1b-agent, did not know who procured the policy or who paid the premium. Cole testified that he procured insurance on his interest as mortgagor after the date of the policy. The learned judge ruled, for the purposes of the trial, that the insurance was on the interest of the plaintiff as mortgagee, and would not be affected by the insl1rance afterwards made by Cole j and a verdict was taken for the plaintiff, subject to the opinion of the court upon this question. The d'efendants moved' for a new trial be· fore Judge Lowell. S. C. Eastman, of Concord, for defendant. W. J. Copeland, of Great Falls, for plaintiff. LOWELL, C. J. This case has been thoroughly argued, and all the authorities which I shall refer to have been cited by counsel. The first point taken by the plaintiff is that the construction' of the