Barnes v. Marshall

• Citation: 69 So. 436,193 Ala. 94
• Decision Date: 03 June 1915
• Docket Number: 516
• Parties: BARNES v. MARSHALL.
• Court: Supreme Court of Alabama

69 So. 436

193 Ala. 94

BARNES v. MARSHALL.

No. 516

Supreme Court of Alabama

June 3, 1915

On Rehearing, June 30, 1915

Appeal from Covington County Court; H.A. Pearce, Judge.

Assumpsit by Vivian H. Marshall against Jesse W. Barnes. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The plaintiff was general agent for a life insurance company, and employed the defendant as his agent to solicit the application for insurance policies. The contract was in writing, and the provisions pertinent to this appeal are as follows:

The first party does hereby appoint the second party his agent for the purpose of procuring insurance applications for the State Mutual Life Insurance Company, Rome, Ga., and to collect thereon the first annual premium, and to receipt therefor on blanks furnished by the party, and to transmit such written applications to the home office of the State Mutual Life Insurance Company, Rome, Ga., for approval or rejection. The first party's portion of the premiums collected by the second party shall be promptly remitted to the first party, with full information as to why the policy has not been delivered; otherwise, the second party shall upon demand of the first party, forthwith pay to it its portion of the annual premium thereon. The second party shall not deliver a policy where demand for its return has been made by the first party before delivery. The first party's proportion of all premiums shall be paid in cash and the second party shall in no case make use of the first party's portion of any premium, but shall remit the same as herein provided.

The contract also contains a schedule showing commissions allowed on premiums, ranging from 40 to 65 per cent., according to the terms and character of the policy. The defendant worked under this contract for one or two months, and procured a considerable number of applications for policies, most of which were accepted and the policies duly issued and delivered. With a few exceptions only, the premiums for these policies were collected by the defendant in the shape of promissory notes, payable to himself, and at various dates between March 1st and November 1st; and for the most part these notes remained uncollected when this suit was brought.

The complaint is in nine counts. The defendant pleaded the general issue, and in short, by consent, a set-off and recoupment. It was shown that the plaintiff, after the defendant had failed to pay to him his part of the premiums wrote letters to all of the note makers directing that they pay the premiums directly to him, and not to the defendant under penalty of losing their policy, and that defendant acquiesced in that demand. In support of the recoupment, defendant offered to show his acquittal of certain prosecutions of himself by plaintiff, and the damages accruing therefrom, especially counsel fees paid in his defense. Evidence of these was excluded by the trial court. The evidence as to the amount of premiums taken under this contract was conflicting, and the jury found for the plaintiff in the sum of $1,309.41. The trial judge instructed the jury to find for the plaintiff, and further that the defendant was not entitled to recover on his plea of set-off. Among others, the following charge was refused to the defendant:

"In no event would the defendant be liable for any amounts except plaintiff's share of premiums actually collected by defendant, and not accounted for to plaintiff by the defendant."

The other matters sufficiently appear.

W.H. Albritton and J.M. Prestwood, both of Andalusia, for appellant.

S.H. Gillis and A.R. Powell, both of Andalusia, for appellee.

SOMERVILLE J.

Under the terms of the written contract between plaintiff and defendant, and in harmony with their mutual conduct thereunder, it is clear that defendant was originally bound to collect the first premiums on all policies sold by him in cash, and remit to plaintiff his portion thereof, or else, if defendant accepted notes in lieu of cash, he was bound to himself settle with plaintiff by cash payments with reasonable promptness. The result, of course, is that, so far as plaintiff's claims are concerned, defendant became indebted to plaintiff, as for money had and received to his use, or by account, for the full amount of plaintiff's proportion of the premiums on all policies sold by defendant and confirmed and issued by the insurance company.

Under the common counts of the complaint, nothing remaining to be done under the contract except the payment to plaintiff by defendant of certain...