British Insurance Company v. Lambert

• Decision Date: 28 February 1898
• Citation: 32 Or. 496,52 P. 180
• Parties: NORTH BRITISH & MERCANTILE INS. CO. v. LAMBERT et al.
• Court: Oregon Supreme Court

52 P. 180

32 Or. 496

NORTH BRITISH & MERCANTILE INS. CO. v. LAMBERT et al.

Supreme Court of Oregon

February 28, 1898

Appeal from circuit court, Multnomah county; E.D. Shattuck, Judge.

Action by the North British & Mercantile Insurance Company against Albert W. Lambert and another. From a judgment entered on a verdict for defendants, plaintiff appeals. Affirmed.

M.W. Smith, for appellant.

Zera Snow, for respondents.

WOLVERTON J.

This is an action by a fire insurance company to recover against its agents for issuing its policy of insurance upon a certain vinegar factory, contrary to instructions, and for failure to cancel such policy when directed so to do, and is here upon the second appeal. One of the defenses pleaded is that defendants were the agents of the assured as well as the plaintiff, with full power and authority to accept and receive other insurance in lieu of the policy issued by plaintiff, and to assent for and in behalf of the assured to the substitution thereof for plaintiff's said policy. That defendants, when directed to cancel said policy immediately and prior to any loss, effected oral insurance upon said property for a like amount with another company (the New Zealand) in behalf of the assured, which was taken and accepted in lieu of plaintiff's policy. Evidence was offered at the trial tending to support this defense, and the jury, under the direction of the court, made the following, among other, special findings: "(12) Did Lambert & Sargent confer with the manager of the New Zealand Insurance Company, and on August 24, 1892, arrange with him in behalf of the vinegar company for an insurance upon the vinegar company's property for the sum of $1,000, and for the issuance of a policy therefor in the usual form of policies of that company to the vinegar company; this arrangement for insurance to take effect August 24, 1892, at 12 o'clock noon of that day; and was this an arrangement for insurance in lieu of plaintiff's policy to the vinegar company, and in substitution for the plaintiff's policy on the property in question? Answer. Yes. (13) If the jury answer 'Yes' to the foregoing question, then the jury is requested to answer this question, viz.: Did the authority of the Western Vinegar Company to Lambert & Sargent extend to the making of such an arrangement, and did the fire occur after a time when the insurance arranged for in the New Zealand Company was to go into...