Colwell v. Union Central Life Ins. Co. of Cincinnati, Ohio
| Decision Date | 04 August 1930 |
| Citation | 232 N.W. 10,59 N.D. 768 |
| Court | North Dakota Supreme Court |
From a judgment of the District Court of Cass County Swenson, J., plaintiff appeals.
Reversed and remanded.
Conmy Young & Conmy, for appellant.
"A contract for compensation between an insurance company and its agent, prepared by the company, will be construed in favor of the agent, where the meaning is ambiguous." Texas Co. v. Pensacola Maritime Corp. 24 A.L.R 1343.
"A construction which makes the contract fair and reasonable will be preferred to one which leads to harsh and unreasonable results." Re North Providence, 90 Conn. 226, 96 A. 926; Wigand v. Bachman-Bechtel Brewing Co. 222 N.Y. 272, 118 N.E. 618; Leschen & Sons Rope Co. v. Mayflower Gold Min. & Reduction Co. 173 F. 855, 97 C.C.A. 465, 35 L.R.A.(N.S.) 1.
"Where a written contract has an apparent meaning at variance with its real meaning, it may bind the author of the ambiguity contrary to its real meaning if this meaning was so obscurely expressed that the other party was misled." Aldrich v. New York L. Ins. Co. 139 N.E. 245.
Texas Co. v. Pensacola Maritime Corp. 24 A.L.R. 1343.
"A contract will not be construed so as to render it oppressive or inequitable as to either party, or so as to place one of the parties, at the mercy of the other, unless it is clear that such was their intention at the time the agreement was made." 27 A.L.R. 834.
"It is well-settled law that there can be no partial rescission of a contract." Owens v. Doughty, 16 N.D. 10, 110 N.W. 78; Klemmer v. Biersdorf (Minn.) 193 N.W. 592. See 2 Black, Rescission & Cancellation, p. 1365.
Holt, Frame & Nilles, for respondent.
"For want of proper or necessary parties a petition or writ of error will be dismissed." 3 C.J. 1014, § 970. See also Vincent v. Collins, 122 Cal. 387, 55 P. 129; Billy v. Gray, 35 Okla. 430, 130 P. 533; Richardson v. Thompson, 59 Neb. 299, 80 N.W. 909; Fortun v. Hughes (Iowa) 126 N.W. 697.
Hayden v. Mitchell (Tex.) 24 S.W. 1085.
"Every party whose interest in the subject-matter of the appeal is adverse to or will be affected by a reversal or modification of the judgment or order appealed from is an 'adverse party,' within the meaning of the statute." Crouch v. Dakota, W. & M. River R. Co. 22 S.D. 263, 117 N.W. 145. See also Powell v. International Harvester Co. 41 N.D. 220, 170 N.W. 559.
"Where the appeal is from the whole judgment, this court has no jurisdiction to modify the judgment in such a manner as shall affect the rights of the parties on whom notice of appeal has not been served, as such rights have been ascertained and fully determined by the judgment." Vincent v. Collins, 22 Cal. 387, 55 P. 129.
"All parties to a suit or proceeding who appear from the record to have an interest in the order, judgment or decree challenged in the appellate court, must be given an opportunity to be heard there before that court will proceed to a decision upon the merits of the case." Dodson v. Fletcher, 78 F. 214, 24 C.C.A. 69; Grand Island & W.C.R. Co. v. Sweeney, 103 F. 342, 43 C.C.A. 255.
"All necessary parties must be brought in within the time fixed by law, or the appeal will be dismissed." Clark v. Rosenwald, 30 N.M. 175, 230 P. 378; Elliott, Appellate Proc. § 162.
Where there is no demand embodied in the statement of the case either for a retrial in this court of the entire case or any specified fact therein, this court is wholly without power to retry any issue of fact in the case. State v. McGruer, 9 N.D. 566, 84 N.W. 363; Hayes v. Taylor, 9 N.D. 92, 81 N.W. 49.
The plaintiff Colwell was formerly a manager or general agent in North Dakota for the defendant Union Central Life Insurance Company; and he brought this action for the purpose of obtaining an accounting from the defendant insurance company for commissions on renewal premiums collected by the company on business written while plaintiff was such manager or general agent. At the time the action was instituted the defendant Security National Bank of Fargo was the holder of an assignment given by the plaintiff of moneys coming to him for commissions under his contract with the defendant insurance company, -- such assignment having been given as collateral security for the payment of an indebtedness of plaintiff to said bank. It appears that there was some dispute between the plaintiff and the defendant bank as to what renewals were covered by the assignment and hence the bank was joined as a party defendant. After the commencement of the action and before the trial thereof the claim of the bank was assigned to one Grady who became the owner and holder of all the bank's rights under the assignment. Grady intervened in the action, and during the first day of the trial thereof and before the matters in issue herein between appellant and respondent had been tried the plaintiff and said Grady entered into a written stipulation settling the matters in dispute between them as regards the assignment. The stipulation provides that said Grady has a first lien upon all renewal commissions coming to the plaintiff from the defendant insurance company, and that said Grady holds the same as collateral security for the payment of certain specified indebtedness owing to him by the plaintiff.
The facts necessary to an understanding of the issues involved on this appeal are substantially as follows: On May 23, 1913 the plaintiff and the defendant insurance company entered into a written contract by the terms of which the plaintiff was appointed manager of the defendant insurance company "to procure applications for life insurance, to deliver policies, to collect premiums when furnished with the policies or receipts; and to perform such other duties as may be required in connection therewith." The contract contained a provision to the effect that the parties had executed it in duplicate "in lieu of all former contracts, if any, for the term of ten years." The territory covered by the contract was approximately the eastern half of the state of North Dakota. According to the terms of the contract the plaintiff was to be paid a certain percentage of the first year's premiums and certain commissions on specified renewal premiums (according to the schedule set forth in the contract) on policies written under the contract. This contract was fully completed; and it is undisputed that if there had been no further contractual relations between the parties the plaintiff would be entitled to receive from the defendant insurance company commissions upon the renewal premiums according to the terms specified in the contract.
On May 23, 1923 the parties entered into another contract. The same printed form was used for the second contract as had been used for the first but certain changes were made in typewriting. Both the first and the second contract contained this provision: "The parties to this contract have executed it in duplicate, in lieu of all former contracts, if any, for the term of ten years." The second contract contained the following provisions:
7. "Renewal Rights -- That the party of the first part will pay to the party of the second part, if living otherwise to his estate, subject to liens, if any, the balance of nine renewal commissions from the date of each particular policy, at the rate provided in Article 4, both upon the business written under this and former contract; less, in the event of termination of this contract, a collection fee of two (2%) percent, excepting that on premiums on which sub-agents receive renewals, the collection fee shall be but one (1%) percent.
16. "Extra Second Year Renewal -- That the party of the first part, during the continuance of this contract, will pay to the party of the second part, an extra renewal commission of five (5%) percent, as the second year premiums are collected and reported in cash, on policies issued on or after May 23, 1922.
17. "Renewals -- Eleventh to Fifteenth Year -- That the party of the first part, during the continuance of this contract, will pay to the party of the second part, a renewal commission of five (5%) percent of the cash reported on the eleventh to fifteenth years' premiums inclusive, on the business written under former contract prior to May 23rd, 1922."
Both contracts contained a provision authorizing the insurance company to terminate the same upon certain specified grounds. It was claimed by the insurance company that the plaintiff had violated his contract in such manner as to authorize a termination thereof, and on or about June 4, 1924, the plaintiff, at the request of the defendant insurance company, resigned as manager, and on that day the following contract was entered into between the parties:
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