Fritschle v. New Amsterdam Casualty Co.
| Decision Date | 07 March 1922 |
| Citation | 238 S.W. 850,209 Mo.App. 337 |
| Parties | EDWARD W. FRITSCHLE, Respondent, v. NEW AMSTERDAM CASUALTY COMPANY, a Corporation, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. J Hugo Grimm, Judge.
REVERSED.
Judgment reversed.
John T Sluggett, Jr., for appellant.
(1) Under the terms of the contract of employment, respondent was not entitled to recover under the evidence. The polar star for the construction of instruments is that the intention of the party executing the document shall not be gathered from a remote or one apparent pertinent provision thereof alone, but on the contrary is to be gleaned from all that appears within the four corners of the instrument. Gibson v. Bogy, 28 Mo. 478; Williamson v. Brown, 195 Mo. 313. (2) Respondent did not fulfill or perform his part of the employment contract. A broker is not entitled to compensation until he has performed the undertaking assumed by him. The right to compensation depends on performance of the stipulations and conditions of the contract of agency and it matters not how great have been his efforts nor how meritorious his services, if he is unsuccessful in accomplishing the object of his employment, he is not entitled to compensation. 9 Corpus Juris, page 588; Jennings v. Overholt, 186 Mo.App. 505. (3) An insurance broker is one who acts as middleman between the insured and the insurer; one who solicits contracts from the public under no employment from any special company but having secured an order, places the insurance with the company selected by the insured or in the absence of any selection by him, then with the company selected by such broker. While Watling was an insurance broker, he had no authority to represent the Heman Construction Company and never secured authority from them to place an order in their behalf with appellant. 9 Corpus Juris, page 509. (4) Even if Watling had secured an order (and he admits he did not secure an order) from Heman Construction Company, respondent would not be entitled to a commission. Brokerage business as known to insurance, is business brought to agents by outsiders who share in the agent's commission. Weidenar v. New York Life Ins. Co., 36 Mont. 592, 94, p. 1. (5) The evidence in this case is not sufficient to support the verdict. (6) The court submitted the case to the jury on the wrong theory and did not confine the jury to the contract on which the suit was brought. (7) The trial court should have sustained appellant's motion for a continuance and should have continued the trial of the cause until the next term of court. An application for a continuance of a cause address itself to the discretion of the trial court; but such discretion is judicial and subject to review on appeal. Alt v. Grosclose, 61 Mo.App. 409.
Paul V Janis for respondent.
(1) On the record alone the decision should be affirmed. (2) The contract was by letter prepared and written by appellant at its home office. The wording of it should be construed most strongly against appellant, who chose the words. Belch v. Schott, 171 Mo.App. 357; McManus v. Gregory, 16 Mo.App. 375; 13 Corpus Juris, pp. 545, 546. (3) Where an agent discloses the name of a purchaser or finds a purchaser, the principal part of his service is performed, and he may not be deprived of his commission by his principal concluding the sale. Respondent found the purchaser and was negotiating with him through Watling when appellant went behind his back and sold the bond. Tyler v. Parr, 52 Mo. 249; Lane v. Cunningham, 171 Mo.App. 17; May v. Avansino, 185 S.W. 1178; Real Estate Company v. Epstein, 157 Mo.App. 106; 107. (4) Respondent was authorized to deal through Watling. There was nothing in the letter to prevent him from getting business through any possible source. Appellant's manager met Watling and knew respondent was dealing through him. Harris v. Foerster, 200 S.W. 118; Bass v. Jacobs, 63 Mo.App. 397; Bray v. Riggs, 110 Mo.App. 630. (5) Respondent's instructions are correct and should have been given. Tyler v. Parr, 52 Mo. 249; Lane v. Cunningham, 171 Mo.App. 17; May v. Avansino, 185 S.W. 1178. Defendant's refused instructions were properly refused. Same authorities; Young v. Vannata, 113 Mo.App. 550.
--After a verdict of a jury plaintiff had judgment in the circuit court for the sum of $ 347.59 based upon a claim for a commission as an insurance agent under a contract of employment with the defendant. Being unsuccessful in obtaining a new trial, defendant appeals.
The defendant company had a branch office in the city of St. Louis. The plaintiff was its general agent in charge of its Casualty business. A Mr. Reach was its general agent in charge of its Fidelity and Surety business. By letter dated March 18, 1916, defendant wrote plaintiff as follows:
The foregoing letter embodies the contract of employment and plaintiff sues upon that contract, claiming a commission on a surety bond written by the defendant for the Heman Construction Company.
Thereafter and in September, 1916, the plaintiff learned from a Mr. Watling, who was in a similar line of business and connected with the Southern Surety Company and who was also an insurance broker that the Heman Construction Company was in the market for a large bond. The plaintiff requested Watling to procure plans and specifications of the contract to be covered by the bond and bring them to the plaintiff's office for the purpose of making up data and submitting the matter to the defendant company. This Watling did, and while they were in the office Mr. Reach, the manager of the surety department end of the business, came in and the matter was turned over to him. Reach as such manager thereafter submitted the matter to the home office of the defendant company and several days later received authority by wire to write the bond. Mr. Reach showed the telegram to the plaintiff, who communicated at once the fact to Watling, and it seems saw Watling every few days, and was told by Watling that the writing of the bond was delayed on account of some financial arrangements yet uncompleted.
The plaintiff was not authorized by the Heman Construction Company to represent them in procuring the bond, and he had no direct control over this business, and in fact had no communication direct with the Heman Construction Company. Mr. Watling, who was an insurance broker and represented primarily the Southern Surety Company, solicited the business from the Heman Construction Company, but did not have authority from that company to write the bond. The Southern Surety Company was not acceptable as a bondsman, and thereupon Mr. Watling said to Mr. Heman that he would like to go out and place the business with some other company, and Mr. Heman said "All right, see what you can do." Mr. Watling testified that Heman did not authorize him to place the business or give him control of it. Mr. Watling further testified that he had informed Mr. Heman that the defendant company had authorized the execution of the bond and that Mr. Heman then told him that he had not decided whether he would give the business to the defendant company or not, but that he thought he would have to give it to another Bonding Company.
On November 3, 1916, without the knowledge of the plaintiff or Mr. Watling, defendant company executed the bond and in doing so allowed a twenty-five per cent commission to one Grant Wyatt, Superintendent of the Heman Company, and who also according to defendant's testimony, was an insurance broker, although not at the time licensed as such. The defendant company rendered to the Heman Company a bill for the full premium, which was paid by check of the Heman Construction Company after deducting twenty-five per cent as a commission, which sum was put by the Heman Construction Company to the credit of profit on the contract in which Grant Wyatt was interested.
Mr. Reach testified that when he called at the office of the Heman Company in the early part of November he was informed by Mr. Heman that the matter of the bond had been placed in the hands of their insurance broker, Mr. Wyatt, and that it would be necessary to make arrangements with Mr. Wyatt.
It appeared from Mr. Heman's testimony that he at no time authorized either Mr. Watling or the plaintiff to write the bond in question or to place the order for the bond with the defendant company, and that while he furnished Mr. Watling with plans and specifications and other data in regard to the contract, he did not authorize Mr. Watling to submit these papers to the defendant company, and that the bond was written by the defendant company through the broker of the Heman Construction Company, Mr. Grant Wyatt, and that Wyatt was the only broker that was authorized to place the order for this bond with the defendant company.
Mr Wyatt testified that he represented the Heman Construction Company as an...
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