Maryland Cas. Co. v. Dobbin

• Decision Date: 19 July 1937
• Citation: 108 S.W.2d 166,232 Mo.App. 557
• Parties: MARYLAND CASUALTY COMPANY, A CORPORATION, APPELLANT, v. PRESTON DOBBIN, RESPONDENT
• Court: Kansas Court of Appeals

108 S.W.2d 166

232 Mo.App. 557

MARYLAND CASUALTY COMPANY, A CORPORATION, APPELLANT, v. PRESTON DOBBIN, RESPONDENT

Court of Appeals of Missouri, Kansas City

July 19, 1937

Appeal from Jackson Circuit Court.--Hon. Allen C. Southern, Judge.

AFFIRMED.

Judgment affirmed.

Harris & Koontz for appellant.

Henry M. Beardsley, Harry L. Donnelly and J. John Gillis for respondent.

OPINION

REYNOLDS, J.

On March 8, 1934, the plaintiff filed its petition in the circuit court of Jackson county against the defendant Preston Dobbin and the Logan Jones Dry Goods Company, by which it sought judgment against the defendant Dobbin and the said dry goods company for an alleged balance due it in the sum of $ 603.14, on account of premiums on insurance policies issued by it to the said dry goods company through the defendant Dobbin, acting as agent or broker of said dry goods company.

The sum sued for is claimed by the plaintiff to be the net balance due it on account of said premiums, after all credits for return premiums on the cancellation of said insurance policies and commissions which appear to have been made have been allowed.

The petition charges that, under an agreement with the plaintiff the defendant Dobbin placed with the plaintiff certain lines of insurance controlled by him, upon which he was to receive a commission on the premiums received or due from such business from the plaintiff, under which agreement he guaranteed the payment to the plaintiff of all premiums on any policies of insurance placed by him with the plaintiff if not paid by his customer; that, on November 1, 1932, the defendant Dobbin, as representative of said Logan Jones Dry Goods Company, placed with the plaintiff an order for certain policies of insurance for the said Logan Jones Dry Goods Company, upon which order the plaintiff issued such policies to and for the benefit of the said dry goods company; that the total premium on said policies amounted to the sum of $ 2,126.34; that the defendant Dobbin was entitled to a commission on such basis in the sum of $ 372.11; that the net premium due to the plaintiff on said policies, after deducting therefrom the commissions due the defendant Dobbin, was the sum of $ 1,754.23; that no part of the said sum had been paid by either of the said defendants to the plaintiff; and that, thereafter, the defendant ordered the cancellation of the said policies by the plaintiff, in pursuance of which order the plaintiff cancelled the same upon the short rate basis, according to the provisions of said policies; that, upon such cancellation, the defendant became entitled to credit in the amount of return premiums in the sum of $ 1,348.18; that, by reason of an overcharge on another policy written by the plaintiff for the said dry goods company, the defendant became entitled to another credit of $ 45.87, making a total amount of credits to which the defendant was entitled the sum of $ 1,394.05; that, upon the cancellation of said policies, the plaintiff was entitled to charge back against the defendant Dobbin $ 243.96 from the commission which had been allowed him; that, by reason of the premises, the balance due the plaintiff from the defendant, after allowing all of such credits, amounted to the sum of $ 603.14.

The defendant Dobbin answered by way of general denial and counterclaim, in which he asked affirmative and equitable relief upon the facts set out in his answer and counterclaim and for judgment against the plaintiff in the sum of $ 1,184.03. In such answer and counterclaim, the defendant Dobbin admitted the procurement by him of the issuance of the insurance policies mentioned in the plaintiff's petition to the said dry goods company and admitted that the premiums thereon amounted to $ 2,126.34, upon which a commission was due him from the plaintiff in the sum of $ 372.11, leaving a balance due the plaintiff, after deducting such commissions, in the sum of $ 1,754.23. It is further alleged therein that the defendant had been engaged for many years in placing orders for insurance with the plaintiff, as agent of both the plaintiff and the insured, and in remitting to the plaintiff, when such policies were issued, by check the amount of premiums due it less his commissions; that such checks had always been duly presented by the plaintiff in due course and, upon the receipt of said checks and the payment thereof, his accounts were satisfied; that, on January 16, 1933, the defendant mailed to the plaintiff at its office in Kansas City, Missouri, his check in the sum of $ 1,754.23 drawn on the Pioneer Trust Company, a bank in Kansas City, Missouri, in full payment of the balance due on the premiums described in the plaintiff's petition and sued for by it in this case; that said check was received by the plaintiff in due course on the next day, January 17; that, at such time and for a reasonable time thereafter, there were funds to his credit in said trust company for the payment of said check, more than sufficient to pay the same in full; and that said check could have been cashed by the plaintiff at any time up to and including the close of the banking day of January 24, 1933, but that said trust company failed to open for business on January 25, 1933, and was placed in the hands of the State Finance Commissioner for liquidation without said check ever having been presented by the plaintiff to it for payment. It alleges that the plaintiff received said check on January 17, 1933, and, at all times from and after said date, had the same in its possession and still has the same in its possession and that it was its duty to present said check for payment before the close of the business day following its receipt and to credit the defendant's account with payment in full. It alleges that the plaintiff falsely informed the defendant that it had never received such check and never had such check and refused to continue such policies in force and forced the defendant to permit said policies to be canceled as of February 1, 1933, although the premiums had been paid it thereon, and to place said insurance elsewhere to protect the said dry goods company; that, at the time of the plaintiff's refusal to continue such policies in force, the plaintiff had said check in its possession and falsely informed this defendant that it did not have such check and that it had never received it; and that it was its duty to have known that it had received such check and that it had possession of the same. It alleges that, by reason of the acts of the plaintiff, the defendant was compelled to procure other insurance for the said dry goods company equal in amount to the insurance provided by the policies canceled, upon which he was entitled to a commission for the services performed in placing and procuring the same in the sum of $ 372.11. The defendant alleges that, through the wrongful acts of the plaintiff in falsely representing the facts as to the receipt and possession of the check mailed it by him, he has been deprived of the sum of $ 1,754.23, the amount of such check, and has been compelled to expend a similar sum to procure other insurance replacing that canceled; that what, if any, amount would ever be paid by the Pioneer Trust Company on such check cannot at this time be determined; that the defendant has no adequate remedy at law to settle and determine the accounts due between himself and the plaintiff; that, upon the cancellation of said policies, the plaintiff was entitled to a credit of $ 475.09 for the amount of premiums due it upon such cancellation on a pro rata basis; and that the plaintiff wrongfully canceled said policies on the short rate basis and retained a greater amount of the premiums than that to which it was entitled. It also set up an overcharge of $ 7.87 on another policy procured from the plaintiff by the defendant for the said dry goods company for which the defendant asked credit. It seeks equitable and affirmative relief upon the facts stated therein. The prayer thereof is as follows:

"Wherefore, this defendant prays the court to declare that by virtue of the facts herein stated the account between the plaintiff and defendant for the sum of $ 1754.23 was settled in full and that the plaintiff had no right to attempt to collect the same again or to cause the defendant to cancel the same and get new insurance in its stead. That by reason of said wrongful statements and acts of the plaintiff herein, the plaintiff is indebted to the defendant in the sum of $ 1754.23 and $ 372.11, commissions earned in replacing said insurance, plus $ 7.87 over-charge on policy No. LD6936, or a total in all of $ 2143.21, against which the plaintiff is entitled to a credit of $ 475.09 for the pro rata premiums for the time the policies of insurance mentioned in plaintiff's petition were in force, and that the plaintiff be ordered and directed to pay to this defendant the sum of $ 1659.12, the total amount due, less said credit, with interest from March 24, 1933, and that the plaintiff be declared to be the owner of and entitled to any payments in the liquidation of the affairs of said Pioneer Trust Company on said check for $ 1754.23 and that judgment be entered accordingly and that the court grant to this defendant, such other and further relief as to the court may seem just and equitable in the premises."

The reply is a general denial.

The facts in the case appear from a stipulation of the parties with respect thereto, introduced in evidence, supplemented by statements of counsel in the nature of admissions against interest or statements of counsel agreed to by the opposing counsel and from certain letters, Exhibits 1 to 7 introduced by the plaintiff and Exhibit A introduced by the defendant.

The stipulation is as...