Bentley v. . the Columbia Insurance Company

17 N.Y. 421

• Court: New York Court of Appeals
• Decided: June 5, 1858
• Status: Published

Opinion

Johnson, Ch. J.

Even if, upon the evidence, there was ground to hold that Bentley’s appointment as sub-agent by Whitney was authorized or ratified by the company, as to which I express no opinion, he had not authority to issue a policy, or to make an agreement to issue a policy to himself. This point was adjudged in The New-York Central Insurance Company v. The Protection Insurance Company (14 N. Y., 85). There was, therefore, no contract to insure, nor anything tending towards a contract, except a bare application for insurance, before the loss had actually taken place. The agent in New-York did not receive the application until after the loss had occurred, nor did he do any act accepting the risk until after the loss was known to him. In Taylor v. The Merchants’ Fire Insurance Company (9 How. U. S. R., 370), the law on this subject is laid down in accordance with the settled rule in respect to the acceptance of propositions for contracts relating to other subjects, that a proposition becomes a binding contract when the party to whom it is made signifies his acceptance of it to the proposer. In that case, where the proposition was sent by mail, mailing an answer of acceptance was held to be conclusive. The same doctrine is held by this court in Vassar v. Camp, (1 Kern., 441), following Mactier v. Frith (6 Wend., 104), where it was held that the doing of some overt act of acceptance, as mailing a letter of acceptance, would consummate the contract. There was in this case, no contract at the time of the loss, nor any before the loss was known to the agent. Nor does the case furnish any evidence of authority to Whitney to enter into agreements to pay for'losses already occurred, when the company he represented was under no precedent obligation.

The judgment should be affirmed.

All the judges concurring,

Judgment affirmed.