Aseltine v. Perry

Haselton, J.

The plaintiff was a life insurance agent. The defendant, through the plaintiff’s agency, made application for insurance on his life; and the plaintiff’s principal, in accordance with said application, issued to the defendant a policy of life insurance, and delivered the same to the plaintiff for the defendant. At the time of said application the defendant executed and delivered to the plaintiff two notes, the consideration for which was an agreement that the agent should pay the company, for the insured, the amount of the first premium, which was $26.20. This the plaintiff did, and held the insurance policy and the notes. In these circumstances, the contract of insurance between the company and the defendant was a completed one, and the notes were valid. Porter v. Life Insurance Co., 70 Vt. 504 , 41 Atl. 970 .

After the maturity of the first note, but before the maturity of the second, the agent brought suit against the defendant in assumpsit, declaring in the common counts only. By his specification he sought to recover the premium as such. He introduced the notes in evidence, but only for the purpose *210 of sustaining his specification. On the trial, which was had before a referee, the plaintiff disclaimed any right to recover upon the above mentioned notes, but claimed to recover in accordance with his specification only.

The plaintiff’s claim and specification being what they were, the Court properly rendered judgment for the defendant on the referee’s report. The case is one in which the plaintiff voluntarily limited his right of recovery by his specification and the position taken by him on trial. Johnson v. Cate, 75 Vt. 100 , 53 Atl. 329 . While a specification is no part of the declaration in respect to subsequent pleadings, it nevertheless circumscribes the scope of the evidence and the plaintiff’s right of recovery. Bank v. Lyman, 20 Vt. 666 ; Lapham v. Briggs, 27 Vt. 27 . It may be amended as the case develops, and, though not amended in terms, it may be treated as having been amended, if the course of the trial has been such as to permit it to be so treated. Greenwood v. Smith, 45 Vt. 37 ; Bates v. Quinn, 56 Vt. 49 . Here the specification was not expressly amended; and the claim of the plaintiff and the course of the trial were such that it cannot be treated as having been amended by implication.

It is obvious from the record that the plaintiff would have had judgment below for the amount of the matured note, but for the erroneous position which he took on trial. His error cannot be attributed toi the Court.

Judgment affirmed.