No evidence was offered showing the receipt of the money by defendants; the evidence given rather tended to raise a presumption that J. & C. Cordes had received, or were about to receive it, and hence, to prove a variance; supposing them to have received it, there was no evidence to show that they were the agents of defendants for that purpose; they were merely agents to effect the insurance. Plaintiff showed no demand on the defendants for the money, although this was essential. (5 Cow. 376; 7 Wend, 320; 5 Taunt. 572; 10 Johns. 285; 9 N.H. 359.)
JUDGES: Mr. Justice Heydenfeldt delivered the opinion of the Court. Mr. Ch. J. Murray concurred.
OPINION
HEYDENFELDT, Judge
It is admitted that the evidence " tended to raise a presumption that the Cordes" of Hamburg had received the money in controversy. This being so, and it appearing beyond dispute that they were the agents of defendants, the latter must be liable directly to the plaintiff. It is argued, however, that although the Cordes of Hamburg were the agents of defendants to effect the insurance, yet it does not appear that they were agents to collect the money. The rule is, that where the agent to effect insurance retains the policy, his agency continues, and in case of a loss, it extends to the collection or enforcement of the policy. The presumption in this case, is, that the Cordes of Hamburg retained the policy as agents of defendants, especially as it seems they proceeded to collect the money, and corresponded with the defendants on the subject of the collection. The facts, therefore, and the presumptions which might reasonably be drawn from them, were sufficient to entitle the case to go to the jury. The last point we will notice is one argued by respondents, to sustain the judgment. They say there was no proof of demand. Under the pleadings, no such proof was necessary. The declaration avers the demand; the answer is not the general issue, but is only a specific denial of two allegations. It denies the collection of the money, and denies that the plaintiff was owner of the ship. Under our practice, and, indeed, under the practice at common law, such an answer is held an admission of all other allegations in the declaration, which are well pleaded.
Judgment reversed, and cause remanded.