Seamans v. Knapp, Stout & Co.

• Decision Date: 08 January 1895
• Citation: 89 Wis. 171,61 N.W. 757
• Court: Wisconsin Supreme Court
• Parties: SEAMANS v. KNAPP, STOUT & CO. COMPANY.

89 Wis. 171

61 N.W. 757

SEAMANS

v.KNAPP, STOUT & CO. COMPANY.

Supreme Court of Wisconsin.

Jan. 8, 1895.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by S. H. Seamans, receiver, etc., against the Knapp, Stout & Co. Company. There was a judgment for plaintiff, and defendant appeals. Affirmed.

It appears from the record that the Milwaukee Mutual Fire Insurance Company was a corporation duly organized and existing under sections 1941a to 1941f, Rev. St., inclusive, during all the times herein mentioned, doing a business of insurance upon the mutual plan; that during all of the same time the defendant herein has been a corporation duly organized and existing under the laws of Wisconsin, with its headquarters or place of business in this state, and doing a lumber business in this and other states; that December 3, 1888, the defendant was the owner of certain lumber, lath, shingles, sash, doors, blinds, timber, and logs in its yard at Ft. Madison, Iowa, and at that date procured a policy of insurance on the same from said Milwaukee Company for $2,500, to run for a period of five years, mutual in its form, and at the same time gave the Milwaukee Company its premium note for $250, payable in installments at such times as the directors of said company might order or assess for the losses and expenses of said company, pursuant to its charter and by-laws; that April 23, 1888, the defendant was the owner of certain other lumber, lath, shingles, sash, doors, blinds, timber, and logs situate in its yard at St. Louis, Mo., and at that date procured a policy of insurance thereon from said Milwaukee Company for $1,500, to run for the period of five years, mutual in its form, and at the same time gave back a premium note of $120, payable in installments at such times as the directors of said company might order or assess for the losses and expenses of said company, pursuant to its charter and by-laws; that January 8, 1891, the plaintiff was appointed receiver of said Milwaukee Company, and qualified as such; that July 9, 1892, the plaintiff, under the direction of the court, assessed the defendant on said first-named policy $125, and on said second-named policy $60, and the same was confirmed by the superior court for Milwaukee county; that the plaintiff gave due notice of such assessment to the defendant, and demanded payment thereof, as provided by said charter and by-laws of the Milwaukee Company, but the defendant refused to pay the same; that November 14, 1892, the plaintiff commenced this action, alleging the facts mentioned in proper form, and other appropriate facts. The defendant answered said complaint by way of admissions, denials, and allegations to the effect that the policy of $2,500 was made in Iowa, and in violation of the laws of that state, and was, therefore, void, and that the policy of $1,500 was made in Missouri, and contrary to the laws of that state, and was, therefore, void; that the parties thereupon waived a jury, and tried said cause before the court upon a written stipulation of the facts as applicable to the first cause of action, to the effect that at the times mentioned W. E. Smith & Co. were insurance brokers in Chicago, and as such solicited insurance of the defendant at its office in St. Louis, to be written upon the mutual plan or in mutual companies; that the defendant thereupon “consented to take insurance in acceptable companies from said William E. Smith & Co., upon the mutual plan, upon its property located at Fort Madison”; that Smith & Co. then applied by letter to the Milwaukee Company at Milwaukee to write a portion of said insurance, whereupon the Milwaukee Company, at its office in Milwaukee, filled out an application with a note at the bottom thereof, except the answers to the questions therein, a copy of which application and note is annexed to the stipulation and in the record, and made a part thereof, together with the policy of insurance upon the property of the defendant at Ft. Madison, bearing date at Milwaukee, December 3, 1888, insuring said property in the sum of $2,500 for the period of five years, and which policy upon its face states that it was issued in consideration of the assured having paid the cash premium of $50, and having given its premium note for the sum of $250, agreeing thereby to pay all such sums as might be assessed on such note by the board of directors of the Milwaukee Company in accordance with the charter and by-laws of said company; that said application, note, and policy of insurance were mailed by the Milwaukee Company to said Smith & Co., and by them were mailed to the defendant at its office in St. Louis; that thereupon the defendant accepted said policy of insurance, and answered said questions contained in said application, and signed said application and accompanying note, and returned the same to said Smith & Co., together with the cash premium of $50, and that Smith & Co. receipted therefor and that thereupon Smith & Co. mailed said application and premium note to said Milwaukee Company, and remitted to said Milwaukee Company said cash premium of $50, less 20 per cent. thereof, allowed by said Milwaukee Company to said Smith & Co. as commission in procuring said insurance; that afterwards all transactions relating to said policy and said risk were conducted and carried on by mail directly between the Milwaukee Company and the defendant; that said Smith & Co. were never the regularly appointed agents of the Milwaukee Company, and never had authority to write policies for that company, and never had in their possession any blank policies of said Milwaukee Company, and were never employed by the Milwaukee Company to solicit insurance for it, but that said Milwaukee Company from time to time issued policies on risks that had been procured by said Smith & Co., upon which the insurance company allowed said Smith & Co. a commission of 20 per cent. of the first cash premium collected, as compensation for securing the business; that the stipulation as to the second cause of action was substantially the same as the first, except that the date of the policy was April 23, 1888, and for $1,500, for a period of five years, on property of the same kind, located at St. Louis; and that the Manufacturers' Mutual Fire Insurance Company of St. Louis, Mo., acted as broker in procuring said policy, instead of said ...