Harrison v. Birrell

Mr. Justice Bean

delivered the opinion of the court.

From an examination of the answer it appears defendant denies the allegations of the complaint, “except as hereinafter expressly alleged,” thereafter alleging, as to each cause of action, that all insurance written by plaintiff in the St. Paul Fire & Marine Insurance Company for defendant, or at his instance and request, during June and July, 1907, was written by plaintiff as presi *417 dent of M. C. Harrison & Co., for and in behalf of said insurance company, and all promises or obligations, if any, to pay premiums, and all dealings, were with the St. Paul Fire & Marine Insurance Company. The transactions set forth in the complaint, as to defendant’s part therein, are not denied, but are claimed to have been had with another, and not with the plaintiff.

1. For the purpose of qualifying the denials and explaining the transactions, we think it proper for defendant to set forth in his answer the dealings as he claims they were, and that the motion to strike the first three paragraphs of each of the first further and separate answers was properly denied.

2. As to the paragraphs of the answers relating to the filing of a libel in the Federal court, this action appears to have been dismissed for want of jurisdiction, and cannot possibly have any effect upon this case. The motion to strike, as to these paragraphs, should therefore have been allowed.

3. The second further and separate answers to each of the two causes of action are in the nature of pleas in abatement, and were waived by defendant pleading to the merits. Rafferty v. Davis, 54 Or. 77 ( 102 Pac. 305 ).

4. A plea in abatement cannot be joined with a plea in bar, and must be disposed of before an answer to the merits can be considered. La Grande v. Portland Public Market, 58 Or. 126 ( 113 Pac. 25 ), and cases there cited. Under the provisions of Section 6709, L. O. L., such pleas should be disposed of before trial of the case upon its merits.

5. The motion to strike was directed at the whole of the further and separate answers. We do not think that the sufficiency of these defenses should be tested by such a motion, or that it should perform the office of a demurrer. The Victorian, 24 Or. 121 ( 32 Pac. 1040 : *418 41 Am. St. Rep. 838 ). The denial of the motion as to these parts of the answer was not error. Proper objection upon the trial would be the only opportunity remaining for plaintiff to take advantage of the defects in these separate answers.

8. It is contended by defendant that the alleged contract was to pay the debts of others, that is, those insured, and therefore within the statute of frauds. There is, we think, some evidence that the entire credit was given to defendant, and that his promise was an original undertaking, and not within the statute, even though the transaction inured to the benefit of others. Mackey v. Smith, 21 Or. 598, 603 ( 28 Pac. 974 ); Peterson v. Creason, 47 Or. 69, 71 ( 81 Pac. 574 ); Chapin v. Lapham, 20 Pick. (Mass.) 467; Chase v. Day, 17 Johns. (N. Y.) 113; 29 Am. & Eng. Enc. Law (2 ed.) 920; 20 Cyc. 180.

7. The contention is also made that plaintiff is not the real party in interest. The evidence tends to show that plaintiff was responsible to the St. Paul Fire & Marine Insurance Company for the premiums, that he had paid the same to such company, and that he was the real party in interest.

8. When an insurance company looks to its general agent for the premiums on insurance written by him, the agent is the owner of the debt, arising by his extending credit for the premiums, so that on payment thereof he is subrogated to all the rights of his principal in the premiums, entitling him to sue therefor: Waters v. Wandless (Tex. Civ. App.) 35 S. W. 184 ; Bang v. Farmville, I. & B. Co., 2 Fed. Cas. 585; Willey v. Fidelity & Cas. Co., (C. C.) 77 Fed. 961 ; Gaysville Mfg. Co. v. Phoenix Mut. Fire Ins. Co., 67 N. H. 457 ( 36 Atl. 367 ). See, also, Overholt v. Dietz, 43 Or. 194, 199 ( 72 Pac. 695 ). No assignment of the premiums is necessary to enable the agent to recover. Gillett v. Insurance Co. of North America, 39 Ill. App. *419 284 . But, if an agent has no right by subrogation or assignment, he is not entitled to bring an action. 2 Cooley’s Briefs on Ins. 916.

As we understand the record, the court allowed the motion to strike out all evidence relating to the custom of the underwriter to look to the broker bringing business into the office, for the payment of premiums on business so introduced, for the reason that the plaintiff had not pleaded such custom.

9. A general custom or usage need not be pleaded. 12 Cyc. § 1097. Where a local custom is relied upon as enter-. ing into, or forming a part of, a contract, it must be pleaded. A local custom which is merely incidental to an implied contract, and relied upon only as evidence of some fact in issue, need not be pleaded: Sherwood v. Home Sav. Bank, 131 Iowa 528 ( 109 N. W. 9 ).

10. It may be helpful to Inquire whether the custom referred to is a general or a local one, within the meaning of the rule. The witnesses testifying were experts on the subject of Pacific Coast marine insurance, and, when they stated that the custom was general and well understood, they without doubt referred to the Pacific Coast. If defendant’s answer should be treated as a denial of the contract, we think, in order that the transaction be fully understood, and to explain what was said and done, that it was competent for plaintiff - to prove such a custom. Insurance agents and brokers in their negotiations use words fraught with much meaning, which would have but little sense to one unacquainted with the business.

11. Taking the statement of these witnesses, therefore, as correct, it would seem that the custom was general in so far as it in any way affected the dealings between plaintiff and defendant.

12. As a matter of fact it might be presumed that defendant, doing a brokerage business in the marine *420 insurance line, had knowledge of such custom, if one prevailed: Whitehouse v. Moore, 18 Abb. Prac. (N. Y.) 142. Mr. Justice Lokd, in Sawtelle v. Drew, 122 Mass. 229 , says:

“A custom, within the meaning of the law, if general, is incorporated into and becomes a part of every contract to which it is applicable; if local, of every contract made by parties having knowledge of or bound to know its existence.”

In our opinion this evidence is admissible to prove the circumstance of the alleged contract, and to explain what was expressed in a general way perhaps, in order to determine the understanding between the parties at the time of making the arrangement, upon what, if anything, their minds met, or what their agreement was: McCulsky v. Klosterman, 20 Or. 108 ( 25 Pac. 366 : 10 L. R. A. 785); Holmes v. Whitaker, 23 Or. 319, 323 ( 31 Pac. 705 ).

In Hewitt v. Week Lumber Co., 77 Wis. 548 ( 46 N. W. 822 ), where the jury found it was, and had been for many years, a general custom in the sawmills on the Wisconsin River for the manufacturer to keep the slabs from manufactured logs, it was held that the custom was a general one, within the meaning of the law, and therefore could be proved without an allegation thereof. “The proof of such custom is always admitted without pleading it.” And in Fish v. Crawford Mfg. Co., 120 Mich. 500 ( 79 N. W. 793 ):

“The plaintiff claims that by a local custom the seller of lumber to Chicago or Milwaukee purchasers pays the entire of the inspection charges, at least in the first instance. The circuit judge left it to the jury to find whether the custom claimed to exist in fact prevailed, instructing the jury that a custom, in order to be controlling, must be definite, precise, and unvarying. It is contended that it was error to submit the question to the jury,, for two reasons: First, that the custom was not declared upon; and, second, that the evidence did not show *421 a custom. We think it was not necessary to declare specially upon this custom. It was in this case only a matter of evidence, adduced for the purpose of showing what the implied contract between the defendant and plaintiff was.”

13. In Great Britain, by universal custom, the broker is liable to the underwriter for the premium on marine insurance. 19 Am. & Eng. Enc. Law (2 ed.) 979.

“A broker who procures insurance is a mere ‘go-between,’ and is not liable for a premium on a policy procured by him for another, unless he acts under a del credere commission, and this rule applies to marine insurance, unless abrogated by a usage, such as prevails in England. * *” 2 Cooley’s Briefs on Ins. 917, citing Mannheim Ins. Co. v. Hollander (D. C.) 112 Fed. 549 .

14. Where an action is based on an implied contract general custom or usage may be offered in evidence to interpret and apply the acts proved and relied on. Such matter is evidentiary, and need not be pleaded: Lowe v. Lehman, 15 Ohio St. 179 ; Fish v. Crawford, 120 Mich. 500 ( 79 N. W. 793 ); Whitehouse v. Moore, 13 Abb. Prac. (N. Y.) 142; Hewitt v. Week Lumber Co., 77 Wis. 548 ( 46 N. W. 822 ).

15. An account rendered and not objected to within reasonable time becomes an account stated: Fleischner, Mayer & Co. v. K. Kubli, 20 Or. 328 ( 25 Pac. 1086 ); Crawford v. Hutchinson, 38 Or. 578 ( 65 Pac. 84 ). Plaintiff concedes the incumbency upon him to show the preexisting relation of debtor and creditor between him and defendant, in order to form a basis for an account stated.

16. It is claimed by defendant that these accounts were original bills only; they could not become stated for the reason that the account of July contained no items included in the June statement. A similar question arose in the case of Crawford v. Hutchinson, 38 Or. 578 ( 65 Pac. 84 ), where it was insisted that an account stated could properly exist only where the accounts on both sides *422 had been examined and the balance admitted as a true balance between the parties, or where a statement, including all the mutual accounts within the knowledge of the creditor, had been rendered and not objected to within a reasonable time. In the case referred to Mr. Chief Justice Bean, at page 581 of 38 Or., at page 85 of 65 Pac., says:

“But the failure to include a counterclaim arising out of some independent transaction does not necessarily prevent an account rendered from becoming an account stated as to everything embodied therein, if no objection is made thereto within a reasonable time.”

If the account of the plaintiff only be stated, showing the amount due, an acknowledgment or admission thereof is sufficient to constitute it as stated, although the defendant may have counterclaims which are admitted: Ware v. Manning, 86 Ala. 238 ( 5 South. 682 ). And in Filer v. Peebles, 8 N. H. 226, it was held that where an account was stated by the parties, and an amount agreed upon as due plaintiff within certain dates, but the defendants claimed something on a prior account, there is a sufficient stating of account for the amount named, subject only to the right of the defendant to set off any prior claim not included therein. See, also, Normandin v. Gratton, 12 Or. 505 ( 8 Pac. 653 ), and Nodine v. Bank, 41 Or. 386 ( 68 Pac. 1109 ).

17. Upon principle, if it be admitted or found that the account for the June premiums became stated or settled, it would be unnecessary for the parties in settling the July account to make another settlement of the June account.

18. On a motion for nonsuit every intendment and every fair and legitimate inference which can arise from the evidence must be made in favor of plaintiff: Herbert v. Dufur, 23 Or. 462, 464 ( 32 Pac. 302 ); Wallace v. Suburban Ry. Co., 26 Or. 174 ( 37 Pac. 477 : 25 L. R. A. 663); Putnam v. Stalker, 50 Or. 210 ( 91 Pac. 363 ).

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19. It is not our purpose to decide any question of fact in this case. Much of the argument of counsel for defendant is upon the force and effect of the evidence. It has been held by this court that the amendment to Section 3, Article VII, of the constitution, does not apply to cases appealed prior to its adoption, November 8, 1910: Darling v. Miles, 57 Or. 593 ( 112 Pac. 1084 ).

We think it was error for the court to grant the motion for a nonsuit.

The judgment of the lower court is therefore reversed, and the cause remanded for a new trial. Reversed.