HOOKER
J.
The
plaintiff brought an action against the defendant, and
recovered a judgment for a balance claimed to be due him for
commissions upon insurance premiums obtained from policies
written for defendant's patrons upon his solicitation.
The defendant has brought the case to this court by writ of
error.
At the
threshold of the case is the question whether the plaintiff
sustained contract relations with the defendant. His claim is
that he was employed on behalf of the defendant by one Glass
with the subsequent approval of Bucknell, who was called the
"manager of the Michigan branch." The defendant
asserts that it made a contract with some men named Cox
living in London, Ontario, by which they had control of its
business in Michigan and some other states, upon a commission
of 50 per cent. upon new business, they to employ and pay
their own subordinates; and that they established a branch
office for Michigan, which they maintained under the charge
of Bucknell, who was called "manager of the Michigan
branch of the Canada Life Assurance Company," who was
paid by a share of the commission on Michigan business and an
allowance made by the Coxes. It is claimed that Glass was
engaged by them upon similar terms; that he was designated
"inspector of agencies"; that he was not authorized
to employ any agents for the company, but was at liberty to
divide his own commissions, as he pleased, with any whom he
should see fit to engage to help him. Thomas Donnelly, a
witness called by the plaintiff, testified as follows
"I am secretary of the Michigan branch of defendant, and
was previously general manager for Michigan. Geo. A. and E. W. Cox are general agents for Eastern Canada
and also have charge of Michigan. They are over Mr. Bucknell,
superior to him." On cross-examination he said: "I
am the direct representative of the Canada Life Assurance
Company here. The Michigan business is managed by Mr.
Bucknell, who is under Mr. Geo. A. Cox and E. W. Cox, who are
general agents, having the territory of part of Ontario and
Michigan. They have the entire charge of the soliciting and
placing of insurance until it is presented to the company for
acceptance. The appointment of agents is subject to their
approval. All agents are not appointed by them; some are
appointed by the manager. The company allows to Messrs. Cox,
the agents of territory, a percentage for all business that
is transacted, and Cox appoints
agents and carries on the business, and pays all the expenses
of that business out of the fund that is coming to him. The
commissions of Michigan come out of the commissions allowed
by the head office; that is, allowed to Mr. Cox. I know of
the arrangement from having charge of the books of the
company here, and I know how the business is conducted. That
is all I do know. I do not know whether the arrangement with
Mr. Cox is in writing or not. The head office pays Mr. Cox 50
per cent. on first year's business and 7 1/2 per cent. on
renewals. Geo. A. and E. W. Cox select the manager for
Michigan, and recommend the appointment to the head office.
His salary comes direct from Cox out of the commissions. He
is paid a salary and commissions. Question: Who pays Glass?
Answer: Well, Cox. Of course it comes out of the commissions
of this branch,-commissions and allowance that is made to the
branch for expenses of the branch. If there is any profit, it
goes to the Coxes; if a loss, they bear it. Mr. Glass had a
number of agents. Mr. Bucknell had some agents of his
own,-what we call subagents more particularly. Those agents
make their contract with the subagents. The agent receives a
certain proportion of the commission, and it is true that he
can make such arrangements with the subagents as he sees fit,
by way of dividing the commission. The extent of authority of
an agent to make a contract with a subagent is to make a
contract to divide whatever commission may be obtained from
the insurance from the company between them." Bucknell, who is said to be next in authority to the
Coxes, was a witness for the defendant. He said that he was
"agent for the Canada Life Assurance Company, manager of
the Michigan branch, and had been connected with the company
for seventeen years; that he had been manager of such branch
since March 1, 1893, under Geo. A. and E. W. Cox, who are the
general managers for Eastern Ontario and the United States
departments." He said further: "I have no contract
of employment with the defendant. My contract was made with
Geo. A. and E. W. Cox, and always has been. It is in writing.
I cannot produce it. It is by letter, and I could have
produced it had I been asked for it. I would be willing to
swear to the written agreement, and it can be verified by
Geo. A. and E. W. Cox." We have in this testimony the
statement by one of the defendant's witnesses that the
Coxes were general managers of the company, and this is not
contradicted. The next lower in authority appears to have
been Mr. Glass. He testified as follows: "When I came to
Detroit, and began the business of soliciting insurance for
the Canada Life, I made my contract or arrangement with Mr.
G. A. Cox and E. W. Cox, of Toronto. My whole dealings were
with them. My arrangements were exclusively with Mr. Cox. I
never wrote to the company but once in my life, and then they
turned me down, and referred me to Mr. Bucknell, who was
under Mr. Cox. All of my dealings were in connection with the
general agent of the territory of Detroit, or Michigan and
Ontario. I had a peculiar arrangement in this way: that Mr.
Cox gave me the exclusive right to the south half of the
state, with the right to appoint my own subagents. My
arrangement was in writing. The contract is with my
furniture, which is stored. I have no way of getting at
it." From the foregoing we think it evident that the
arrangement made with the Coxes, and through them with
others, did not contemplate authority to pledge the credit of
the company in the employment of agents, and that neither
Cox nor Bucknell understood that he had such
authority. Glass, who was employed as superintendent, or
inspector of agencies, or, as he says, given exclusive right
to work the south half of Michigan, had no greater authority.
We think, therefore, that the plaintiff's claim must
fall, unless it can be said that he had a legal right to
understand that he was to look to the defendant for his pay
by reason of its holding out Bucknell and Glass as its agents
with authority to bind it in such matters.
The
plaintiff, Gore, testified that he entered the employment of
the defendant upon terms made by Mr. Glass, whose position
was inspector of agencies. On being asked to state his
arrangements with Mr. Glass, he said: "Mr. Glass, when I
first arranged with him, told me that forty per cent. was the
amount paid all agents. I was to solicit insurance, and
whenever it was necessary I was to call upon him to go with
me, to assist in closing up any insurance I might get in
process of working. I was to work in Detroit. He told me a
written contract was not necessary." On
cross-examination he said: "I did not know anything
about his arrangements with the company except such as he had
told me. It was later that I made a contract with him, and
then I came to Detroit. The day I reached Detroit I talked it
over with Mr. Glass. We talked it over. I did not make any
definite arrangement that day. I said I would see, and let
him know later on. The next day I had another talk, when I
made the final arrangement, and decided to go to work for the
company. The arrangement was that I was to have forty per
cent. of the first year's premiums. It was not in
writing. A few days after, I asked him if it was not better
to have it in writing, and he said it was not necessary. Then
my arrangement was that the company was to pay me forty per
cent. of the first year's premiums of all the insurance
that I had. He said he was the authorized agent of the
company, and I was to work for the Canada Life, and I could
advertise as such. He said he was the agent for the Canada
Life Company, and that he would employ me for the company
and the company would pay me forty per cent. of the first
year's premiums of
any insurance I procured, but I was to have
no renewal premiums. That was the agreement that was made
between Mr. Glass and me. *** I was working under Glass; that
is, I was working for the company under his instructions. ***
I was...
