(Syllabus.)
ESTOPPEL — Agent of insurance company by accepting from successor company numerous payments of only half of renewal commissions originally contracted for held precluded from suing to recover remaining half of commissions.
When an agent of an insurance company is entitled, by the terms of a written contract, to receive 5 per cent. of the renewal premiums paid in cash to the company by certain policyholders for a certain number of years, and this company pays such percentage to the agent until 1928, when its business was transferred to M. Company, which assumed the contract of the company with the agent and paid such percentage to agent until 1933, when it became insolvent, and its insolvency was adjudged by court, and its assets vested in the superintendent of insurance by statute; after which the superintendent of insurance sold such assets, with certain exceptions, to G. Company, which agreed to thereafter pay agent 50 per cent. of the 5 per cent., and began in September, 1933, to pay agent 2 1/2 per cent. of the renewal premiums and agent accepted such payments of 2% per cent., and this conduct continued until the year 1938, at which time agent sued G. Company to recover the 2 1/2 per cent. not paid theretofore, held, that the acceptance by agent of the reduced payments without protest amounts to a voluntary acceptance of the benefits of the transaction within section 9434, O. S. 1931, 15 O.S.A. § 75, and precludes agent from maintaining the action to recover the 2 1/2 per cent. unpaid.
BAYLESS, J.
W.E. Cantrell filed an action in the court of common pleas of Tulsa county against General American Life Insurance Company, a corporation, to recover a money judgment representing certain money claimed to have been withheld from him by said defendant under the same general facts and circumstances as those related and involved in case No. 29219, General American Life Insurance Co. v. Kellie M. Roach, 188 Okla. 515, 111 P.2d 185, this day decided by this court. The appeal in this case, the Roach Case, supra, and another case were presented to us jointly on appeal.
With respect to the plea of estoppel presented in this matter, as it was presented in the Roach Case, supra, the facts show this: Between August 28, 1933, when defendant undertook to pay Cantrell 2 1/2 per cent. instead of 5 per cent., and May, 1937, when Cantrell says he learned that the money withheld would never be paid to him, and finally on May 27, 1938, when he brought the action out of which this appeal arose, four years and nine months elapsed. This is an even longer time than elapsed in the Roach Case, and we think what we said therein respecting the application of the rule of estoppel based on our statute should apply here with equal force.
Therefore, based upon the decision in the Roach Case, supra, we reverse the judgment herein in favor of Cantrell and remand the same to the trial court, with directions to dismiss the action.
WELCH, C. J., CORN, V. C. J., and RILEY, GIBSON, and HURST, JJ., concur.