Harrison v. Birrell

• Decision Date: 19 April 1911
• Citation: 58 Or. 410,115 P. 141
• Parties: HARRISON v. BIRRELL.
• Court: Oregon Supreme Court

115 P. 141

58 Or. 410

HARRISON v. BIRRELL.

Supreme Court of Oregon

April 19, 1911

Appeal from Circuit Court, Multnomah County; John B. Cleland, Judge.

Action by M.C. Harrison against A.H. Birrell. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

This is an action upon two accounts stated for premiums on marine insurance, written by plaintiff at the instance and request of defendant.

Plaintiff alleges in effect that on September 15, 1906, he entered into a contract with defendant, whereby it was agreed that on all premiums for insurance written by him in the St. Paul Fire &amp Marine Insurance Company, at the instance and request of defendant, and for parties introduced by defendant to him defendant was to receive a commission of 10 per cent., in consideration of which defendant agreed to pay the premiums on all marine insurance so written. Thereupon an account was opened by plaintiff, and on June 29, 1907, rendered to defendant with reference to insurance written during that month, when it was agreed there was due plaintiff $531.52, of which on July 31, 1907, defendant paid $289.35, and the account became stated. The second cause of action is based upon an account stated on or about July 31, 1907, for marine insurance written during that month, amounting to $370.35, no part of which has been paid.

Defendant by his separate answers, denies the allegations of the complaint, "except as hereinafter expressly alleged," and for further and separate answer avers in substance that plaintiff is not, but that the St. Paul Fire &amp Marine Insurance Company, a corporation, is, the real party in interest. For a second further and separate answer to the first cause of action defendant alleges that plaintiff, at the times mentioned in the complaint, was doing business at Portland, Or., for and in behalf of M.C. Harrison & Co., a foreign corporation, as its president, and that said corporation has not complied with the laws of the state of Oregon by filing with the Secretary of State a declaration has not paid the filing fee nor any annual license fee for the year 1907, as required by law, and that in order to evade the payment of these fees this action was begun in the name of M.C. Harrison.

Plaintiff interposed a motion to strike the second affirmative answers and certain paragraphs of the first affirmative answers as frivolous, irrelevant, and redundant. This being denied, plaintiff replied, denying the material allegations thereof.

Upon trial of the cause by the court without a jury, plaintiff introduced evidence, tending to show that he, doing business under the name of M.C. Harrison & Co., is the general agent in Portland, Seattle, and San Francisco for the St. Paul Fire & Marine Insurance Co.; that in the year 1906 an arrangement was entered into for the interchange of insurance business between him and defendant, Birrell, an insurance broker doing business in Portland, in which he agreed to pay commissions on all marine insurance premiums which defendant should bring into his office; that thereafter defendant ordered different policies of marine insurance to be written by him in the St. Paul Fire & Marine Insurance Company, and an account was opened by him, in which defendant was charged with the premiums and credited with the commissions thereon. All the transactions were entered in defendant's books also, in an account entitled "Miscellaneous Insurance Accounts," which showed that he in no instance paid plaintiff for premiums until after he collected same from the insured. The following statement, sent by Harrison, the plaintiff, to Birrell, the defendant, was by the latter honored and paid:

Portland, Ore., Sept. 15, 1906.

A.H. Birrell, a/c L.B. French, To M.C. Harrison & Co., Marine Insurance

Brokers and Average Adjusters, Pol. 2527, S. "Azbec," 9/25.

To Marine Insurance on One Crate Pictures to L.A., $1,000 at 1/2% ....... $5.00

Bkge., 10% ........................................................ .50

-----

$4.50

Paid, Sept. 17, 1906.

M.C. Harrison & Co., per J.W.M.

Afterward, at the instance and request of defendant, other insurance was written, and on and between October 31, 1906, and July 31, 1907, several monthly statements were rendered, four being in the name of the St. Paul Fire & Marine Insurance Company, with the words "M.C. Harrison & Co., General Agents," stamped on the face thereof, all of which were honored by defendant, except that of June 29, 1907, for $531.52, upon which payment of $289.35 was made, and the statement of July 31, 1907, for $370.35, no part of which was paid. The total amount of the different payments to plaintiff was $1,052.23. All the business was sent in by defendant, at whose request it had been written, except in one or two instances, when it had been written for one of his clients and reported to him. To no item in these accounts was objection made until some time between the 25th and 30th of November, 1907, at which time defendant objected to the July statement; but in no way did he question the June statement until January of the following year.

Plaintiff also produced evidence, showing it to be a general custom in marine insurance business on the Pacific Coast, and particularly in Portland, for the underwriter of such insurance to look to the broker, bringing the business into the office, for the payment of premiums on business so introduced. This custom was well understood, and under such custom, in case the business was introduced by a broker, it would be regarded as discourteous for the underwriter to interview the owner of the cargo or ship upon which the insurance was written, except with the consent of the broker. The St. Paul Fire & Marine Insurance Company looked to its agents for payment of premiums, and the agents were obligated to make such payments, whether or not the premiums were collected. The premiums earned on business noted in the statements rendered to defendant were, in fact, all paid by plaintiff to the St. Paul Fire & Marine Insurance Company, which company, by reason thereof, asserts no claim against the defendant.

At the conclusion of plaintiff's evidence defendant moved to strike out all the testimony on the subject of custom, and for judgment of nonsuit, which motions were allowed by the court, and exceptions taken by plaintiff.

From a judgment in favor of defendant for costs, plaintiff appeals.

Wallace McCamant (Snow & McCamant, on the brief), for appellant.

A.F. Flegel (Flegel & Reynolds and Charles H. Carey, on the brief), for respondent.

BEAN, J. (after stating the facts as above).

From an examination of the answer it appears defendant denies the allegations of the complaint, "except as hereinafter expressly alleged," thereafter alleging, as to each cause of action, that all insurance written by plaintiff in the St. Paul Fire & Marine Insurance Company for defendant, or at his instance and request, during June and July, 1907, was written by plaintiff as president of M.C. Harrison & Co., for and in behalf of said insurance company, and all promises or obligations, if any, to pay premiums, and all dealings, were with the St. Paul Fire & Marine Insurance Company. The transactions set forth in the complaint, as to defendant's part therein, are not denied, but are claimed to have been had with another, and not with the plaintiff.

For the purpose of qualifying the denials and explaining the transactions, we think it proper for defendant to set forth in his answer the dealings as he claims they were, and that the motion to strike the first three paragraphs of each of the first further and separate answers was properly denied.

As to the paragraphs of the answers relating to the filing of a libel in the federal court, this action appears to have been dismissed for want of jurisdiction, and cannot possibly have any effect upon this case. The motion to strike, as to these paragraphs, should therefore have been allowed.

The second further and separate answers to each of the two causes of action are in the nature of pleas in abatement, and were waived by defendant pleading to the merits. Rafferty v. Davis, 54 Or. 77, 102 P. 305.

A plea in abatement cannot be joined with a plea in bar, and must be disposed of before an answer to the merits can be considered. La Grande v. Portland Public Market, 113 P. 25, and cases there cited. Under the provisions of section 6709, L. O.L., such pleas should be disposed of before trial of the case upon its merits.

The motion to strike was directed at the whole of the further and separate answers. We do not think that the sufficiency of these defenses should be tested by such a motion, or that it should perform the office of a demurrer. The Victorian, 24 Or. 121, 32 P. 1040, 41 Am.St.Rep. 838. The denial of the motion as to these parts of the answer was not error. Proper objection upon the trial would be the only opportunity remaining for plaintiff to take advantage of the defects in these separate answers.

It is contended by defendant that the alleged contract was to pay the debts of others, that is, those insured, and therefore within the statute of frauds. There is, we think, some evidence that the entire credit was given to defendant, and that his promise was an original undertaking, and not within the statute, even though the transaction inured to the benefit of others. Mackey v. Smith, 21 Or. 598, 603, 28 P. 974; Peterson v. Creason, 47 Or. 69, 71, 81 P. 574; Chapin v. Lapham, 20 Pick. (Mass.) 467; Chase v. Day, 17 Johns. (N.Y.) 113; 29 A. & E. Ency. (2d Ed.) 920; 20 Cyc. 180.

The contention is also made that plaintiff is not the real party in interest. The evidence tends to show that plaintiff was responsible to the St. Paul Fire & Marine Insurance Company for the...