Lungstrass v. German Ins. Co.

• Decision Date: 31 July 1871
• Citation: 48 Mo. 201
• Parties: EUGENE LUNGSTRASS, Respondent, v. GERMAN INSURANCE COMPANY, Appellant.
• Court: Missouri Supreme Court

48 Mo. 201

EUGENE LUNGSTRASS, Respondent,
v.
GERMAN INSURANCE COMPANY, Appellant.

Supreme Court of Missouri.

July Term, 1871.

[48 Mo. 202]

Appeal from Pettis Circuit Court.

Finkelnburg & Rassieur, and Crandall & Sinnet, for appellant.

I. The contract of insurance never was consummated. This policy could have become binding only by the dispatch of a notification of acceptance directed to the insurer, by mail or otherwise, before the fire. (Phill. Ins., § 17; Taylor v. Merch. Fire Ins. Co., 9 How. 390; Wallingford v. Home Mutual Fire Ins. Co., 30 Mo. 46; Neville v. Merch. & Manuf. Ins. Co., 19 Ohio, 459.) Assent must be signified to the other contracting party, and where the parties are at a distance such signification is by letter, dispatch, or other missive, put under way to the other party. (2 Dutcher, 280; 46 Mo. 366.) In this case there was no union of minds, and the defendant could not have held plaintiff for the premium. (Ocean Ins. Co. v. Carrington, 3 Conn. 357.) Where premiums cannot be enforced in law, the contract is not binding on the insurance company. (Neville v. Merch. & Manuf. Ins. Co., supra.)

II. Plaintiff cannot shield himself behind his agency. Having conducted the whole matter of negotiation from its inception with defendant directly by correspondence, he cannot now seek to bind defendant by any pretended private memorandum made in a memorandum book of his own, of which no notice was sent to defendant--of which defendant knew nothing, could know nothing, and which remained under plaintiff's control, to be made or unmade as he pleased. Indeed, he could not in law have acted as agent of both parties under any circumstances. Such contracts are void. “An agent of an insurance company, however broadly his authority may be expressed, has no power to act for

[48 Mo. 203]

himself. He cannot make a contract in which he acts directly for himself, and also as agent for the company.” (Bentley v. Columbia Ins. Co., 19 Barb. 595; Utica Ins. Co. v. Toledo Ins. Co., 17 Barb. 133.)

Phillips & Vest, for respondent.

The company, by the terms of its letter, charged plaintiff with a premium of $99.35. Could it thus hold itself in the double vantage-ground of claiming this premium if there had been no fire on the 7th of November, 1867, and then not be liable to him in the event of a fire?

Furthermore, when plaintiff received the altered policy, and charged himself with the premium of two per cent., he had not received the letter purporting to have been written on the 4th of November, 1867; and of course the entries made by him on the 6th of November, prior to the fire, were pursuant to this letter, and in...