Brown v. Mass. M. L. Ins.

*307 Foster, J.

If the plaintiff’s evidence is insufficient to warrant the jury in finding a verdict in his favor, and if the defendants’ evidence does not supply the defect, and so all the evidence in the case is legally incompetent to sustain a verdict for the plaintiff, a motion for a nonsuit should be granted. And in such a case it does not seem to be material whether the motion is made at the close of the plaintiff’s case, or whether it is delayed till all the evidence is in.

Pillsbury v. Pillsbury, 20 N. H. 90;

Fletcher v. Thomp son, 55 N. H. 308;

Oakes v. Thornton, 28 N. H. 44. The motion for a nonsuit was seasonably made.

Did the plaintiff’s evidence mate out a prima facie case? The contract on which it is claimed the defendants are liable to the plaintiff is one of life-insurance; and to ascertain what that contract was, the intention of the parties must govern.

Robert v. N. E. Ins. Co., 2 Disney (Ohio) 106 . Whatever the contract may have be^n in relation to the first policy of September 10,1872, and however fraudulent may have been the representations of Butler in re! gard to it, the plaintiff is to recover in this case, if at all, by the contract of December 31, 1874. Previous to that time he had acquired no rights against the defendants under the last policy. The negotiations with reference to it amounted simply to a proposal to take insurance, — not to a contract. By signing the application, accepting the policy, and bringing a suit on it, the plaintiff, in the absence of fraud or imposition, must be held to have had notice of, to have understood, and to have agreed to the terms, limitations, and conditions contained in the application for insurance and in the policy.

Grace v. Adams, 100 Mass. 505 . He agreed, in consideration of the insurance by the company on the life of R. B., to pay the company an advance premium of ©61.20 in cash, and a loan note of $30; and he also had notice of and agreed to this provision in the policy, “ that the policy shall not take effect until the advance premium hereon shall have been paid during the lifetime of the person whose life is hereby insured.” And in still more emphatic language, the same condition is expressed in the application which he signed. This was one of the essential parts of the contract.

Davis v. Mass. Mut. L. Ins. Co., 13 Blatchf. 462 .

But it is claimed that the plaintiff received a receipt from the company acknowledging the payment of the advance premium, and that the company are estopped by that receipt. It does not appear, however, that the plaintiff was misled or could have been misled by this receipt, so far as the company were concerned. He knew he had not done all that was required by the terms of the policy; that he had not performed his part of the contract; and he cannot now set up an estoppel against the company in his own favor, when he had full knowledge of all the facts relating to the transaction, and knew, as matter of fact, that he was not entitled to a receipt.

Baker v. Ins. Co., 43 N. Y. 283 ;

Sheldon v. Atlantic *308 Co., 26 N. Y. 460 ;

Pitt v. Berkshire L. Ins. Co., 100 Mass. 500 ;

Bergson v. Builders’ Ins. Co., 38 Cal. 541 .

The arrangement with Hodgdon, by which the $50 paid on the old policy was to be transferred in payment of the first six months premium on the one in suit, does not bind the company. Hodgdon was acting, not in his individual capacity, but as the agent of the company. He might have agreed to pay the balance due out of his own pocket, and, with the assent of the company, made the plaintiff his debtor. But the plaintiff’s testimony conclusively shows that it was an arrangement by which the company was to be bouird. It was not an attempt to defer payment beyond a specified time, but it was an attempt to waive and avoid payment of the full amount due, in fraud of the company. Had Hodgdon any authority to compromise with policy-holders in this manner? We have found no case in which an agent’s power has been extended to this point; and on principle we see no reason why it should be, in the absence of airy authority or ratification by the principal.

Catoir v. Ins. Co., 33 N. Y. 487 ;

Hoffman v. Ins. Co., 92 U. S. 161 ;

Franklin L. Ins. Co.

v. Sefton, 53 Ind. 380 ;

Union Mut. L. Ins. Co.

v. McMillen, 24 Ohio State 67 ;

Merserau v. Phœnix M. L. Ins. Co., 66 N. Y. 274 ;

Davis v. Mass. Mut. L. Ins. Co., 13 Blatchf. 462;

How v. Union Mut. Ins. Co., 80 N. Y. 32 . The plaintiff introduced no evidence tending to show that Hodgdon was a general agent of the company, or, that he held himself out as such. But the policy provided that “ no agent of the company shall make any contract binding the company, nor alter or change any condition of this policy, nor waive forfeiture of this policy.” Hodgdon did - attempt to make a contract binding on the company to release the plaintiff from his obligation to pay the whole of the advance premium, and did thus- attempt to alter and change one of the essential conditions of the policy. The plaintiff, therefore, having full and ample notice and knowledge of the restrictions on Hodgdon’s authority in this respect, as an agent of the defendants, cannot now hold the company responsible for his unauthorized contract unless the company has in some way ratified it.

In Davis v. Mass. Mut. L. I. Co., cited above, the defendants being the same as in this case, and the policy containing the same conditions and limitations, Judge Shipman says, — “ It is not necessary, under the provisions of this application and policy, to consider any distinction between the powers of a general agent, by which term I mean an agent who is authorized to make contracts of life insurance, and the powers of a sub-agent who is employed ■ ‘ to solicit applications for insurance, and under such employment to collect premiums on policies that were placed in his hands, and thereupon to deliver premium receipts and such policies to the assured,’ and whose powers are coextensive with the business entrusted to his care, because in my opinion the powers of any person who was an agent, and not an officer of the company, to vary *309 the terms of the contract which had been entered into between the company and Sweatland, had been taken away, and the prohibition of the exercise of such powers was known to Sweatland. The provisions alike of the application and of the policy declare that the policy will not take effect unless prepayment has been made. This condition could have been waived by the company or its duly authorized agent, unless the agent has been prohibited from varying the terms of the policy, and that restriction of his powers had been brought home to the knowledge of the insured.”

The evidence, introduced by the plaintiff to show Hodgdon’s method or custom of doing his insurance business, was immaterial. Not showing that the company ever knew of or ratified his acts in the instances testified to, or that the terms of the policies were the same as those in the plaintiff’s policy, it was not competent for the jury to find from such testimony that the company in this case wore bound as having knowledge of Hodgdon’s special arrangement with the plaintiff. A principal cannot be held responsible for acts of his agent beyond the apparent scope of his authority, which he has never ratified, and of which he has never had any actual knowledge. Fr anklin Ins. Co.

v. Sefton, 53 Ind. 380 ;

Koelges v. Guard. L. Ins. Co., 2 Lans. 480 ;

Bouton v. Am. Mut. L. Ins. Co., 25 Conn. 542 .

Nor is the defect in the plaintiff’s case supplied by the defendants’ testimony. The fact, that the company charged the premium to Hodgdon when they issued the policy, being in accordance with a custom of business between the company and their agents, not being regarded by the company as a payment, and not being known to and understood by the plaintiff as a payment of his indebtedness to the company, cannot now be held to have had that effect. As against the ageirt, it was not a debt due to the company until he received the money; if he never received the money and returned the policy, the premium was credited to him on the company’s books ; and if he delivered the policy without receiving the premium, the policy by its terms was not to be enforced.

A

ud there is no evidence that Hodgdon agreed with the plaintiff to become personally responsible to the company for the amount of his premium.

Buffum v. Fayette M. F. I. Co., 3 Allen 360 ;

Hoyt v. Mutual Benefit L. I. Co., 98 Mass. 539 ;

Acey v. Fernie, 7 Mee. & W. 151.

The note for 830, which was a part of the advance premium, was never delivered to the company. It was made by R. B. and delivered to the plaintiff. It did not, in any proper sense, come into the possession of the company. The plaintiff could not accept it in behalf of the company. He could not, for the company, pass on its proper execution. The evidence at most only shows that the plaintiff was requested to carry the blank note to It. B., and after he had signed it to bring it back to Hodgdon. But it was as much a part of the contract that the note should be delivered, as *310 that the cash part of the premium should be paid. The note, therefore, never having been legally delivered to the defendants, the plaintiff, has failed to perform his part of the contract in this respect.

Lewis v. Phœnix M. L. I. Co., 44 Conn. 72 ;

Markey v. Ins. Co., 118 Mass. 178 .

All the evidence in the case not being competent to sustain a verdict in favor of the plaintiff, a nonsuit should have been ordered.

Verdict set aside.

Dob, C. J., Stanley, Bingham, Smith, and Clark, JJ., did not sit: Allen, J., concurred.