Gaysville Manuf'g Co. v. Phoenix Mut. Fire Ins. Co.

• Decision Date: 28 July 1893
• Citation: 36 A. 367,67 N.H. 457
• Parties: GAYSVILLE MANUF'G CO. v. PHOENIX MUT. FIRE INS. CO.
• Court: New Hampshire Supreme Court

36 A. 367

67 N.H. 457

GAYSVILLE MANUF'G CO.

v. PHOENIX MUT. FIRE INS. CO.

Supreme Court of New Hampshire. Merrimack.

July 28, 1893.

Action by the Gaysville Manufacturing Company against the Phoenix Mutual Fire Insurance Company. The court, under agreement of parties, ordered a nonsuit pro forma at the close of plaintiff's evidence, subject to the opinion of the law term. Nonsuit set aside.

Albin & Martin and W. L. Foster, for plaintiff.

Streeter, Walker & Chase, L. S. Morrill, Leach & Stevens, and F. N. Parsons, for defendant.

BLODGETT, J. The plaintiff's policy was obtained for it by Francisco, an insurance agent and broker at Rutland, Vt. through the defendant's general agent, Jackman, at Concord, in this state. The material subjects of controversy in this suit arise upon two conditions, among others, contained in the policy: (1) "This policy is issued by this association and accepted by the insured upon this condition, that if the premium on this policy * * * is not paid to this association within thirty days from the date of the policy, it becomes null and void, and this association is relieved from all liability under the same"; and (2) "if any broker or other person than the assured have procured this policy, he shall be deemed to be the agent of the assured, and not of these companies, in any transaction relating to the insurance." The defense is that the policy, at the time of the fire, was void, in consequence of the nonperformance of the foregoing condition as to payment, while the contention of the plaintiff is that the evidence as reported is competent for the consideration of a jury, not only upon the waiver of the condition, but also upon the question of payment of the premium within the time limited. The case was heard by the trial court upon the agreement between the parties that all evidence offered by the plaintiff should be admitted subject to the defendant's exception, and that, upon the conclusion of its evidence, the court should order a nonsuit pro forma, subject to the opinion of the law term, saving to the defendant all legal objections to the evidence introduced by the plaintiff; and the question now is whether there was any competent evidence upon which the defendant could be properly found chargeable by a jury.

For present purposes, the material circumstances attending the transactions between the parties may be briefly summarized as follows: The plaintiff carried an insurance of some $60,000, and for many years had been accustomed to obtain it through Francisco, who kept track of its expiring policies, renewing them from time to time as they expired, charging the premiums to the plaintiff, and from time to time sending it a statement of account which it would pay by remittance, and which he would credit to its account, in accordance with the general usage or custom between insurance agents and the assured. In July, 1888, Jackman, being desirous of obtaining risks for the defendant, sent to Francisco a circular letter, addressed to "Agents and Brokers," soliciting his business, and offering him 15 per cent. commission upon all accepted risks,— premiums to be paid by the 10th of each month following date of the policy. In consequence of the receipt of this letter, Francisco, under date of August 27th, wrote to Jackman for insurance on the plaintiff's property to replace some expiring early the next month, inclosed a survey of the property, and saying in his letter, "I prefer placing the surplus direct, rather than through brokers," which expression, as he understood, made him the defendant's agent, and entitled him to an agent's commission. Jackman replied, August 20th, calling for a statement of the value of the property and the amount of insurance upon it, and inclosing another copy of the foregoing circular. September 1st Francisco furnished the Information sought, and two...