Harnickell v. New York Life Ins. Co.
| Decision Date | 27 November 1888 |
| Citation | 111 N.Y. 390,18 N.E. 632 |
| Parties | HARNICKELL v. NEW YORK LIFE INS. CO. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from supreme court, general term, First department.
The plaintiff, A. G. A. Harnickell, in the year 1885, was the owner of several policies of insurance, issued upon his life by several different companies, for a total of $35,500. Some of these were payable to his widow and minor children. One M. L. Hamlin, who was what is termed a ‘special agent’ of the New York Life Insurance Company, came to the plaintiff in the winter or spring of that year, and desired him to take some insurance upon his life in that company. The plaintiff stated to him that he was insured for a sufficient amount, and did not wish double insurance; whereupon Mr. Hamlin gave him estimates in regard to policies in his company, their cost, value, etc., and the negotiations finally culminated in an agreement between the plaintiff and the agent that the agent should take the policies which the plaintiff already had in the other companies, and obtain the amount of their surrender value in cash, or paid-up policies therefor, to an amount, in either case, which should be satisfactory to the plaintiff, and upon the accomplishment of this the plaintiff would take two policies in the defendant company for $25,000 each, upon terms agreed upon between him and the agent. Pursuant to this verbal understanding, the plaintiff signed an application for such policies to the defendant, the agent agreeing to abate largely in the amount of the premiums due thereon, and also that notes, instead of cash, should be paid by the plaintiff, therefor. The application was sent on to the company as signed by the plaintiff, and in due time two policies of insurance were presented to him by the company, through its agent, Mr. Hamlin. Up to this time the evidence is uncontradicted that the policies in the defendant company were only to be taken out by the plaintiff and received by him upon the successful negotiation by the defendant's agent with the other companies in which the plaintiff had policies for the payment of the surrender value of such policies in cash, or the issuing of paid-up policies therefor; the amount, in either event, to be satisfactory to the plaintiff. Before these negotiations were carried through in regard to the disposition of the policies which the plaintiff already had in the other companies, and after he had signed an application, which had been sent to the home office, and after the agent had received back the policies in the defendant company, Mr. Hamlin called upon the plaintiff for the purpose of carrying out the negotiations, and brought to him the two policies, for $25,000 each issued by the defendant company. The plaintiff finally accepted the policies under an agreement entered into between him and Mr. Hamlin as the agent of the defendant, and signed by them respectively, which agreement is as follows:
‘NEW YORK, May 8th, 1885.
‘ To M. L. Hamlin, Special Agent of the New York Life Insurance Company-DEAR SIR: I have received from you policies No. 204, 233, for $25,000, and 204, 234, for $25,000, and have given promises of payment for the premiums thereon, less rebate allowed, viz.:
+----------------------------------------------------------------------------+
¦ ¦ ¦ ¦ ¦ ¦$ 539 13 ¦
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¦My two notes, - - - - - - - - - - - - - - - - - - - - - - -- - - ¦ ¦
¦- ¦ ¦
+-----------------------------------------------------------------+----------¦
¦Check, - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ¦ ¦
¦- ¦ ¦
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¦ ¦ ¦ ¦ ¦ ¦$2,156 50 ¦
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¦I hand you herewith together: ¦ ¦
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¦5¦Policies ¦endow'ts ¦in¦Provident Co., - - - - - - - ¦$ 5,500 00¦
+-+----------+----------+--+--------------------------------------+----------¦
¦2¦do. ¦life ¦“ ¦Provident Co., - - - - - - - ¦10,000 00 ¦
+-+----------+----------+--+--------------------------------------+----------¦
¦1¦do. ¦do. ¦“ ¦Equitable, - - - - - - - - - ¦5,000 00 ¦
+-+----------+----------+--+--------------------------------------+----------¦
¦3¦do. ¦do. ¦“ ¦Mutual Ben'f, - - - - - - - ¦10,000 00 ¦
+-+----------+----------+--+--------------------------------------+----------¦
¦1¦do. ¦do. ¦“ ¦U. S. L. Co., - - - - - - - ¦5,000 00 ¦
+----------------------------------------------------------------------------+
-Which it is understood is all the policies I have now in force, besides those of your company, above mentioned, and from which I want to realize a satisfactory amount in cash, and, if not obtainable, then paid-up policies; and if nothing satisfactory to me can be obtained, then I understand that my old policies shall be left in force, and the above new ones in your company, if found by my necessary to wait, or omit taking them, can be returned to you, and my above promises returned to me.
‘Yours, truly,
A. G. A. HARNICKELL.
‘M. L. HAMLIN.’
The agent failed to accomplish the surrender of any of these policies, or the giving in exchange therefor paid-up policies, upon any terms satisfactory to the plaintiff; and indeed, in regard to some of the policies, they could not be surrendered or exchanged without the consent of the plaintiff's wife and minor children, unless pursuant to the provisions of the statute. The notes given by the plaintiff to the agent were by him forwarded to the home office, and the account of such plaintiff with the company defendant was credited with the receipt thereof, a check for $17.37 being retained by the agent. The agent failing to obtain payment of the surrender value of, or paid-up policies in exchange for, the plaintiff's policies, the plaintiff finally refused to continue negotiations any longer, and refused to accept or retain the policies which had been delivered to him conditionally; and on the 6th of August, 1885, he wrote a letter to the company defendant, and to the defendant Hamlin, as its agent, in which he stated the terms upon which the policies had been received by him, and the other policies in other companies given up by him to Mr. Hamlin, and in which, after stating that they had wholly failed to effect a surrender of his policies upon terms satisfactory to him or to effect any surrender at all, and had returned him...
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