John Hancock Mut. Life Ins. Co. v. Loewenberg

• Decision Date: 21 March 1890
• Citation: 120 N.Y. 44,23 N.E. 978
• Parties: JOHN HANCOCK MUT. LIFE INS. CO. v. LOEWENBERG.
• Court: New York Court of Appeals Court of Appeals

120 N.Y. 44

23 N.E. 978

JOHN HANCOCK MUT. LIFE INS. CO.

v.LOEWENBERG.

Court of Appeals of New York, Second Division.

March 21, 1890.

Appeal from supreme court, general term, first department.

Action by John Hancock Mutual Life Insurance Company. A judgment in favor of defendant, entered upon the report of a referee, was affirmed at general term, and plaintiff again appeals.

F. R. Minrath, for appellant.

Newbold L. R. Edgar, for respondent.

HAIGHT, J.

This action is brought upon a bond executed by the defendant as surety to recover the amount alleged to be due and owing the plaintiff by one Rudolph W Wolffsohn, its agent. The referee has found as facts, in substance, that on the 27th day of August, 1877, the plaintiff entered into a written agreement with Wolffsohn, by which he became the agent of the company to take charge of its business in the city of Buffalo and vicinity; that under the provisions of the contract he was authorized to make collections for premiums due, or that should become due, upon policies, and to promptly pay the money so collected to the company, or to such person or bank as the treasurer may designate from time to time. It was further agreed that he should be allowed to draw at the rate of $2,000 per year, payable monthly, and at the expiration of the year any amount due to him for commissions should be paid to him, and any amount overdrawn by him should be returned to the company; that the defendant, in executing the bond in question, had no express knowledge of the agreement between the plaintiff and Wolffsohn, and that he never subsequently expressly agreed thereto; that at the end of the year the agency terminated, and it was then found that Wolffsohn, the agent, had correctly accounted for and paid over all moneys received by him as such, except the sum of $9.22, and the further sum of $2,000, which had been retained by him in monthly installments of $166.66, in accordance with the provisions of the contract. It was further found that of this sum $500 had been advanced to him in cash by the plaintiff in October and November, 1877; that the monthly installments of $166.66 up to the 27th day of January, 1878, were retained by him with the consent of the plaintiff; that the monthly installments retained by him thereafter to the end of the year, amounting to the sum of $1,175.90, was retained without the consent of the plaintiff; that the commissions earned by him did not cover the same; and judgment for that amount was ordered against the defendant upon the bond. The condition of the bond is ‘that if the said Rudolph W. Wolffsohn shall keep true and accurate accounts of all business of said company instrusted to him; shall promptly pay to said company, or to such person or bank as the treasurer of said company may designate from time to time, all moneys of said company that may be received by him, or come into his possession or control; shall deliver all the property of said company that he may at any time receive or obtain control of, to such person as may be at any time designated for that purpose by the president of said company; and shall well...