TASKER v. INSURANCE CO

Holt, for the defendants.

The Penn policy was in force at the time of the fire, and the defendants are not liable. M. S. T. Co. v. W. A. Co., 125 Mass. 110; Ins. Co. v. Webster, 6 Wall. 129; Ins. Co. v. Ins. Co., 17 Barb. 132; Vail v. Judson, 4 E. D. Smith 165. The Penn company could not terminate their contract by notifying their agent that they declined the risk.

A person cannot be agent of both contracting parties, in the same transaction, without their mutual consent. Walker v. Osgood, 98 Mass. 348, Rupp v. Sampson, 16 Gray 398; Story Agency, ss. 31, 211. This case does not come within the exception as to brokers. A contract made by a person as agent of both parties, is voidable at the election of either party. N. Y. C. Ins. Co. v. N. P. Ins. Co., 14 N.Y. 85.

The plaintiff cannot sustain this action unless Robinson was his agent. And if Robinson was his agent, the plaintiff is chargeable with his agent's knowledge of the terms of the contract in regard to the limitation of right of action to one year from time of loss. The Distilled Spirits, 11 Wall. 356, 366. This rule is based on the principle that it is the duty of an agent to communicate to his principal the knowledge he has respecting the subject of negotiations. Story Agency, s. 140; Hovey v. Blanchard, 13 N.H. 145; Patten v. Ins. Co., 40 N.H. 375; Hart v. Bank, 33 Vt. 252. If Robinson was the plaintiff's agent, he was his agent for the purposes of this contract, part of which the plaintiff proposes to adopt, and the rest reject. The principal cannot ratify in part and reject in part. F. L. T. Co. v. Walworth, 1 Comst. 433, 446, 447; Express Co. v. Palmer, 48 Ga. 85; Cochran v. Chitwood, 59 Ill. 53; Widner v. Lane, 14 Mich. 124; Krider v. Trustees, 31 Iowa 547; Billings v. Morrow, 7 Cal. 171; Hardeman v. Ford, 12 Ga. 205; Menkens v. Watson, 27 Mo. 163; Henderson v. Cummings, 44 Ill. 325; Coleman v. Stark, 1 Oregon 115.

The plaintiff elected to stand on the Penn policy, and received $300 on it, and thereby rejected and repudiated the Kenton policy. He could not treat the Penn contract as binding and rescinded at the same time. Sumner v. Parker, 36 N.H. 449; Hathaway v. Payne, 34 N.Y. 92, 109.

Wait and Parker, for the plaintiff.

Robinson was the agent, as well of the defendants as of the Penn company, and authorized to write their policies. He agreed with the plaintiff that he would keep him insured in three good companies for one year to the amount of $3,000. The agreement was not for three policies merely, but that the plaintiff should be kept insured in three good companies. In case any one of the three original policies proved ineffectual or insufficient, good faith required Robinson to write a policy to take its place in some other good company of which he was agent. And when such a policy was written, he became by this agreement the agent of the plaintiff to receive the delivery of it. To this extent he might well be the agent of both parties. Clark v. Ins. Co., 40 N.H. 333; Angell Ins., s. 476.

There is no incompatibility in the same person's acting as agent to apply for and at the same time to write a policy, and we suppose it to be a very common practice. When, after the Penn policy had been cancelled, the policy in the Kenton company was written and the premium was transferred to the account of the latter, the contract became complete, and the responsibility of the defendant became fixed.

The doctrine of estoppel has no application to this case. The plaintiff may have made a very reasonable and just, or a very unreasonable and unjust, claim upon the Penn company, and may have obtained, very rightfully or wrongfully, some money from the latter. It does not follow from this, in legal intendment, that he had no valid policy in the defendant company; nor was there any evidence that the latter were by it induced to, or that they did, change their position, or that they have lost anything thereby. That was evidence to the jury on which they could find whether there was a valid and subsisting policy in the defendant company or not, but it afforded no ground for a nonsuit.

The defendants contend, that Robinson being authorized to receive delivery of the policy for the plaintiff, the latter is to be charged with his knowledge of its contents; and that consequently he is bound by the provision which limits the bringing of an action upon it to one year from the loss. That, as a general proposition, notice to an agent for the transaction of business is notice to the principal, is not, we suppose, to be denied. That it is true under all conceivable circumstances, and regardless of the equities of any special case, we feel warranted in believing is neither law nor reason. And in this we are borne out by the following authorities: Plympton v. Preston, 4 La. Ann. 356; Ross v. Houston, 25 Miss. 591; Champlin v. Laytin, 6 Paige (N. Y.) 189; Merril v. Sloan; 1 Murph. (N.C.) 121; Hart et als. v. F. M. Bank, 33 Vt. 252; Houseman v. Girard, c., Assoc., 81 Pa. St. 256; Farrington v. Woodward, 82 Pa. St. 259; Wyllie v. Pollen, 32 L. J., N.S., Ch. 783; Anketel v. Converse, 17 Ohio St. 11; Hoppock v. Johnson, 14 Wis. 303. The reason of the general rule, which is doubtless elementary, we conceive to be, that the agent is such to receive notice, as well as to contract, for the principal; and a party having dealt in view of the information to the agent, and of the state of facts known to him, justice requires that the principal should be bound. But, where the circumstances are otherwise, the reason of the rule fails, and the rule itself ought not, and, by the above cited authorities, is held not, to apply.

The notice to the agent, Robinson, which is sought to be charged upon the plaintiff, was not gained in his employment for the plaintiff; it was gained in the employment of the defendants, and was never in fact communicated to the plaintiff. Robinson was the general agent of the defendants; his knowledge of the contents of the policy was gained in their employ; he was all the time acting in their interests, under their obedience, and from an exclusive sense of duty to them. In writing the policy, and in all the negotiations with Tasker, he was acting solely as the agent of the defendants, and in furtherance of their interests. He was authorized as agent of the plaintiff simply to receive delivery of the policy. But we submit, that an agency to receive delivery of an instrument is not an agency to receive notice of its contents; and delivery to such a one does not imply notice of the contents of the instrument delivered. Delivery may be to a third person, who, in the absence of dissent, becomes the agent for that purpose. Peavey v. Tilton, 18 N.H. 151; Buffum v. Green, 5 N.H. 71, 80; Cook v. Brown, 34 N.H. 460, 475. Now, in such a case, does reception of the deed by the third person imply knowledge of its contents? We do not conceive that it does. If not, such a delivery cannot, per se, charge the principal with such notice.

The agreement with Tasker was that he should be kept insured. He had no knowledge, and could not foresee, that when that agreement came to be executed by the company, it would be by an instrument charged with a condition such as this. He had a right to suppose it would be by the execution of a policy in conformity with the general law of the land. Before he was permitted to see this policy, or to know its contents, it was ordered by the defendant company to be sent to their home office; and for this purpose this very agent was made use of. Of course, the plaintiff is to be affected by everything which is of the essence of the contract; but when the defendants by their own act deprived him of the possession of the policy, and when the only person existing who knew its contents was their own general agent, acting for them throughout this very transaction, and when the defendants, by these acts, have shown an intention to deprive the plaintiff of knowledge of the contents of this policy, and have succeeded in fact in doing so, it seems to us it would be a strange doctrine, indeed, which should hold, in favor of these defendants, that the plaintiff is chargeable with knowledge of this collateral provision, and that he was bound to act in view of it.

When the defendants required Robinson, first, "to hold the policy," and shortly afterwards to send it to the home office, they knew they were depriving, and it was doubtless done with the intention of depriving, Tasker of knowledge of its contents. By this act they waived the provision in question, and estopped themselves to set it up, unless they could show that he in fact possessed knowledge of it. This they did not offer to do; and the jury, under instructions requested by the defendants themselves, have found that neither Tasker nor his attorney had knowledge of it, "or notice of such facts in regard to it as should have put them, as reasonable men, on inquiry in regard to it." There was competent evidence of a waiver of it. Currier v. Ins. Co., 53 N.H. 538, 550, 551, 552. To apply the general rule of law, that notice to an agent is notice to his principal, to a case like this, would be an application of a technical rule to the destruction of justice. The plaintiff had a right to possession of the policy; he had a right to rely upon its possession as his means of information of its contents. Had the defendants, in good faith, allowed him its possession, it would have been reasonable and just that he should be charged with knowledge of, and estopped to deny that he knew, its contents. But when, by the wrong of the defendants themselves, he was deprived of its possession, and, with that, of his means of informing himself, we submit that it would be a most unjust rule which should allow the defendants, contrary to the truth, to insist that he knew, or ought to have known, of the existence of this provision. How can this company say that it was Tasker's fault, or his negligence, that he did not know of this provision of the policy? It was the fault and the wrong of this company itself which deprived him of the means of such knowledge.