Rosenborg v. Johnson
| Decision Date | 04 January 1909 |
| Citation | 45 Colo. 53,99 P. 315 |
| Parties | ROSENBORG v. JOHNSON. |
| Court | Colorado Supreme Court |
Appeal from Lake County Court; Wm. H. Harrison, Judge.
Action on a note by Charles Johnson against Birger Rosenborg. From a judgment for plaintiff, defendant appeals. Affirmed.
Jas Glynn, for appellant.
George Burtch, for appellee.
Judgment was rendered in the county court of Lake county for the sum of $106.75, being the amount found due the plaintiff upon the defendant's promissory note. From the judgment the defendant has appealed to this court.
The note sued on was given to Johnson under circumstances, as appears in the abstract of record, as follows: Johnson was an insurance agent, and induced Rosenborg to buy a $1,000 policy in the company he represented. The first premium was paid to the company by Johnson, and Rosenborg gave his note to Johnson, payable in 60 days, and the policy was thereupon delivered to Rosenborg. Johnson, it seems, kept a running account with his company, and he directed the amount of the premium due on the policy to be charged to him, which the company did. Johnson testified that at the time of this transaction he had on deposit with the company more than enough to pay the amount of the premium. The error relied upon to reverse the judgment is that it is contrary to the evidence, and contrary to the law applicable to the evidence. The specific objections to the judgment are: (1) That the judgment should not stand because of fraudulent representations made by Johnson to Rosenborg to induce him to make application for the policy; (2) that the transaction between the parties was in violation of the terms of the application and the policy, and that any claim for insurance that might have arisen under the policy could not have been sustained by the beneficiary, the policy being void for want of payment of the first premium by the beneficiary; (3) the testimony shows that Johnson was a mere solicitor for the company, and had no authority to deliver the policy until the premium was paid. We shall not consider the question of fraud discussed in the brief, for the reason that the court must have found no fraud was practiced by the plaintiff upon the defendant; and there was testimony to support the finding. The authorities which hold that a mere agent cannot waive the conditions of the policy with reference to the payment of the premium; that no discrimination may be made...
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