Chauncy v. German American Ins.

Doe, C. J.

As between the two companies, the Faneuil Hall took the place of the defendants as insurers; but between insurer *432 and insured there was no novation. The policy-holder did not release the defendants from their contract with him, and did not accept the other company as a substitute for the defendants; and it is immaterial whether this or any other action could be maintained on the policy against the other company. The defendants transferred to the Faneuil Hall the right to assent to Marden’s assignment of the policy to the plaintiff; and if that right could be exercised in the name of the company to whom it had been transferred, it could nevertheless be properly exercised in, the name of the defendants. There being a contract of insurance between Marden and the defendants, the assent required by the policy could be given in the name of the party by whom the policy required it to be given; and the defendants, being that party, had authorized the Faneuil Hall to give that assent. The company thus authorized could write on the policy an assent that would bind the defendants ; and the writing of an incorporated agent must be -done by an agent of that agent.

The written assent, properly given in the name of the defendants, was signed “ F. W. DeRochemont & Son, Agents.” If it had been signed “ F. W. DeRochemont & Son, Agents of the Faneuil Hall Insurance Company, who are authorized to give this assent,” or, “ F. W. DeRochemont & Son, Agents of the Faneuil Hall Insurance Company, who are agents of the German American Insurance Company for the purpose of giving this assent,” the form of the writing would have been unobjectionable. The assent, containing no mention of the Faneuil Hall company, appears on its face to have been given by DeRochemont & Son as the defendants’ agents, whereas, in fact, it was properly given by DeRochemont & Son as agents of the defendants’ agents. If the disclosure of the subagency were necessary, the writing would be reformed on a bill in equity filed as an amendment of the declaration.

Metcalf v. Gilmore, 59 N. H. 417, 432. But the disclosure of the subagency in the writing was not necessary to bind the defendants.

If the defendants object thafc a part of the amount due on the policy is payable to Marden, he can be joined as a plaintiff by amendment, and can have judgment for the amount due him without costs; and Chauncy can have judgment for the balance and costs, if justice will be done by such procedure.

Judgment for the plaintiff.

Clark, J., did not sit: the others concurred.