Dunham v. Morse
| Decision Date | 17 January 1893 |
| Citation | 158 Mass. 132,32 N.E. 1116 |
| Parties | DUNHAM et al. v. MORSE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
The plaintiffs are agents in southeastern Massachusetts for the Equitable Assurance Society of New York, with authority to collect premiums. The day the note was signed, plaintiffs in good faith advanced the money to the insurance company by an entry on their books of account crediting the company with cash equal to the amount of the note, and sent the application, with a coupon attached, by mail to the company. The coupon recited that they had issued to defendant a conditional receipt. Plaintiffs, with knowledge of the company, kept money received as premium with their own funds, and deposited it in their own names, and sent their personal checks in settlement of accounts. The company never had knowledge of the taking of the note by plaintiffs, and they did not take it on account of the company. Trafford procured from defendant an application for a policy of insurance, which he desired to take effect at once. Defendant then made his note to plaintiffs, and in return received a receipt reciting that there had been received the first annual premium on proposed assurance, that "assurance to be from date of this receipt," provided the application shall be accepted, and that "this receipt to be subject to conditions on the back hereof." On the back it was printed that "this receipt is not valid unless premium is actually paid in cash."
Jackson, Slade & Borden, for plaintiffs.
H.M Knowlton and T.F. Desmond, for defendant.
The only question in this case is whether the note declared on was given without consideration. The testimony shows that the only purpose of the defendant in giving it was to obtain insurance at once, instead of waiting for the action of the insurance company on his application. If a contract of insurance binding on the company was given him, the note is good; otherwise, it is not. The contract which was signed and delivered by the agent purported to give such insurance, but it was expressed to be subject to certain conditions printed on the back, one of which was that the contract was not valid unless the premium was "actually paid in cash." There was nothing to show that the agent had authority to alter the contract in this respect, and it was one of the conditions referred to that none but certain designated officers of the company had such authority. See Kyte v Assurance Co., 144 Mass. 43, 10 N.E. 518. If this premium was not paid in cash, the contract of insurance was not binding on the company, and the note was without consideration. It is not contended that the defendant made any payment in cash. He gave the agents the note in...
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