Currier v. Continental Life Insurance

53 N.H. 538

• Court: Supreme Court of New Hampshire
• Decided: June 15, 1873
• Status: Published

Opinion

Sargent, C. J.

Certain facts are found by the court upon evidence which was considered. These facts are stated, and they raise certain questions of law, which are proposed for the consideration of the court. The policy by which the life of the wife of the plaintiff had been insured was to be paid for in five annual premiums, as it seems, half cash and half note. Four of these had been paid seasonably, and receipted for; the last payment was sent, all in cash, by express, December 3, 1869, to the defendants, when, by the terms of the contract, it was due the 15th of November previous.

The first question raised is, “ Was this money, delivered to the express by the plaintiff, to be considered as paid to the defendants ? Loomis, the defendants’ agent at Portsmouth, wrote to the plaintiff notifying him of his fifth premium, and requesting him to forward it to Portsmouth instead of paying it at Boston, as he had done for thé last two years, for the reason that the company would in that way save a commission for collecting. lie then states to him, “ You can forward the premium by bank check, or your own private check, on any bank or institution, and can be collected through the bank here; or, you can send by express.” Any bank check or private check would answer, provided it could be collected through the bank at Portsmouth. We think this was evidently the intention of Loomis, — that this is the interpretation of the letter: “ We will receive anything in payment on which we can raise the money at a bank here, or you can send the money by express;” — and the case finds that the plaintiff did send the money by express; that he relied upon this letter, understanding that the money was at the risk of the defendants after delivery to the express; and that there was no fraud, bad faith, or want of ordinary and reasonable care on his part.

Loomis evidently assumed, and we may well assume, that without any notice and special request this premium would be paid in Boston as the last two had been, and he had a special object, which ho states, for having ihe money paid at Portsmouth; — hence these directions. And if he (Loomis) was asking the plaintiff to put himself to an inconvenience for the sake of accommodating the company and enabling them to save a commission upon the money, they might well be willing to take a little trouble in getting á check cashed at the bank, or even to pay the expressage on the money — say seventy-five cents — rather than to pay a commission of two per cent., which would be ten dollars', or one per cent., which would be five dollars, or even one half per cent., which would be two dollars and fifty cents.

At. first there was a controversy as to whether the plaintiff sent this money by express, or paid it to the express at all; but the court find that he did so, in good faith, on the third day of December. Was that a payment to the defendant company ? It is well settled that the delivery of goods by a vendor to a common carrier, in accordance with the order or directions of the vendee, operates as a delivery to the vendee, so that the common carrier becomes the agent of the vendee and not of the vendor; and a loss of the goods in the carrier’s hands would be the loss of the vendee and not of the vendor. And the law went further than that, even, and held that when the vendee did not appoint or name the carrier, the same principle would hold good. Thus, in Godfrey v. Furzo, 3 P. Williams 185, decided in 1733, it was held that in case “ a tradesman in London, by order of a tradesman in the country, sends goods to the latter who does not appoint or.name the carrier, and afterwards the carrier imbezils the goods, the trader in the country must stand the loss.”.

So, in Dutton v. Solomonson, 8 Bos. & Pul. 582 (1803), where it was claimed, in the argument,.that if the vendee had not pointed out the particular mode of conveyance he would not be liable to the risk while the goods were in the hands of the carrier, and Vayle v. Bayle, Cowp. 294, and Dawes v. Peck., 8 T. R. 330, were cited. Lord Alvanley, C. J., referring to that position of the counsel, said, — “When tins point was first mentioned I was surp:ised, for it appeared to me to be a proposition as well settled as any in the law, that if a tradesman order goods to be sent by a carrier, though he does not name any particular carrier, the moment the goods are delivered to the carrier it operates as a delivery to the purchaser, the whole property immediately vests in him, he alone can bring an action for any injury done to the goods, and if any accident happen to the goods, it is at his risk. The only exception to the purchaser’s right over the goods is, that the vendor, in case of the former becoming insolvent, may stop them in transitu

So Kent states the law to be — 2 Kent’s Com. 499 — “ Delivery of goods to a servant or agent of the purchaser, or to a carrier or master of a vessel, when they are to be sent by a carrier or by water, is equivalent to a delivery to a purchaser; and the property, with the corresponding risk, immediately vests in the purchaser, subject to the vendor’s right of stoppage in transitu.” See Chitty on Cont. 489, 484, and 485; 2 Greenl. Ev., sec. 212; Woolsey v. Bailey, 27 N. H. 217, 219, and cases cited; Smith v. Smith, id. 244, 252, and cases cited. In these last two cases it seems to be held that, though before the day of railroads it might be necessary that the purfchaser should order the goods sent by a carrier in order to have the delivery operate as a transfer of the property to the purchaser, yet that, since railroads have been in operation, and it has become the custom to transport goods by them as a matter of course, a delivery of the goods at the depot of the railroad would complete the sale and vest the property immediately in the vendee. Garland v. Lane, 46 N. H. 245, 248, and cases cited; 1 Ch. Pl. 6; 1 Parsons on Cont. 445; Arnold v. Prout, 51 N. H., 587.

The authorities also hold, that when the debtor delivers money to be transmitted to his creditor, in accordance with authority given him so to do by his creditor, the loss, if any, is the loss of the creditor. So, if money were sent by the post, in a letter properly directed to the creditor, and be lost, the debtor is discharged if he was directed so to transmit the money, or that was the usual course of business between the parties. Chitty on Cont. 750. To the same effect is 2 Greenl. on Ev., sec. 525;—and he cites Warwicke v. Noakes, 1 Peake’s R. 67, and Hawkins v. Rutt, 1 Peake’s R. 186. So,in Wakefield v. Lithgow, 3 Mass. 249, when the defendant had sent money to the plaintiff’s attorney,in a letter, by mail, which he did not receive — lreld, that if the defendant was authorized by the letter from the plaintiff’s attorney to remit that sum, in that manner, at that time, the loss must fall on the plaintiff; if not, the plaintiff must have judgment.

So, in Kington v. Kington, 11 M. & W. 233, it was not doubted that a plea that the defendant had ever been ready to pay the money claimed in suit, and that on a certain’day the plaintiff ordered or requested the defendant to forward the money to him by express, and that the defendant did so, and paid the same as directed, in satisfaction and discharge of the plaintiff’s claim, was a good plea in bar, — though there was some informality in the plea in that case. In this case, if the agent had said, in his letter, You may send the money to me by mail, or you can send it by mail, we should probably have understood at once that if so sent it -would be at the company’s risk, and it is the same when he said, You can send it by express.' The vendee or consignee of goods or money does not need to say, Send the goods or money by express, or by mail, at my risk. He has only to designate the manner, or instrument, or medium of transportation; and when thus sent they are at the consignee’s risk as much as though he had said in words, “ at my risk,” This is implied in all such cases, and we think it was in this case. We think the first question proposed must be answered in the affirmative.

Was the policy forfeited by the delay from November 15 to December 3 ? The plaintiff was given tp understand, and did understand, that though by the printed regulations of the company the agent could not, in terms, bind the company, and that the company had undertaken so to arrange it, if possible, that all their agents should be the agents of the assured, or, at least, shall be their own agents only to secure contracts in writing by which the company could hold all others, but that they should have no power to bind the company to anything, yet that the uniform usage and practice of the company was to receive premiums within a reasonable time after due, when there was no material change in the health of the person insured ; that the plaintiff could safely rely on this usage, and take time to examine the subject and consider what he would do, and defer the fifth payment for a reasonable time after November 15, without running any risk of forfeiture if his wife should continue in good health; that the company would receive the premium under such circumstances without objection. The plaintiff understood, and was reasonably justified in understanding, that the uniform usage of the company was to waive the forfeiture in such cases, and that this usage would not be departed from in this case. But for this understanding he would have paid his premium on or before November 15.

But he had sufficient reason to ask delay. The other premiums lie had paid, half note and half cash, and he expected to pay this one in the same way; and he had probably been assured that after a few years the dividends were to be sufficient to pay and discharge these notes — were to be fifty per cent, on the amount of his premium. But he finds it only fifty per cent, on ordinary rate, which lie would not be very likely to understand much of. He acts in good faith ; he desires an explanation of these two points; he applies to Loomis, who is unable to give him any satisfactory explanation. He then writes to Hinckley, in Yermont, another agent of the company, making inquiries on these points, but receives no answer. November 22 he wrote to Elmore, the secretary of the company at Hartford, making the same inquiries, and adding, I have deferred paying my fifth premium until we come to a proper understanding of the subject. He also adds, that Loomis had suggested that no advantage would be taken by the company while this question was being settled. November 80, Elmore replied, giving explanations of the dividends, and informing him that he could pay the fifth premium in the usual way, half cash and half note, if lie preferred, but saying nothing further about any extension of time or waiver of forfeiture.

The plaintiff delivered to the express the whole amount in cash, relying, as to extension and waiver, upon his understanding derived from the statements of Loomis and the letter of Elmore; and if the express had delivered the money to Loomis, the plaintiff would have received a renewal receipt, and the defendants would have treated the policy as in force without raising any objection. The plaintiff’s wife continued, and still continues, in perfect health ; and satisfactory evidence of that fact would have been furnished the defendants by the plaintiff, if he had understood it was desired or necessary. He would also have paid interest on the premium, if he had understood that interest was demanded er expected. In his subsequent interviews and correspondence with Loomis, no certificate or evidence of health, or interest, was demanded ; but the defendants, by refusing to give him a receipt for the fifth premium, and insisting upon a forfeiture, on the ground that they had not received the money delivered by the plaintiff to the express, waived their right to such certificate, evidence, and interest, if they would otherwise have been entitled thereto.

The plaintiff understood, and Loomis understood, and Elmore, the defendants’ secretary, understood, that the forfeiture was waived, and that, if the plaintiff paid his fifth premium within a reasonable time after November 15, it was to be received as though paid in time ; and the court find that if the money which the plaintiff sent had been in fact received, it would have been' accepted in payment and discharge of said premium. To all intents and purposes, then, the company had absolutely agreed to waive the payment at the day, and, if it was paid within a reasonable time thereafter, to receive it in satisfaction of the premium; and the court find that the company has waived its right to all the subsequent proofs to which it might otherwise have been entitled, and that plaintiff made a proper demand, etc.

But why do we say that the case stands as if the company had absolutely waived or agreed to waive this payment at the day appointed ‘l It is settled, in Hale v. Ins. Co., 32 N. H. 295, that, as a general rule, corporations have power to waive their rights, and are bound by estoppels in pais like natural persons. Now, suppose Loomis could not make an agreement that should bind the company: still he knew, and could tell, and tell truly, what the uniform usage of the company had been in similar cases, and the plaintiff would have the right to presume, perhaps, that what they had uniformly done in similar circumstances, they would do in his case. But he finally writes to the company’s secretary at Hartford, and informs him that he had deferred paying this premium beyond time, and gives him the reasons, and states to him what the agent had assured him about their waiving this payment. Now, these agents and secretaries, whether they are competent to make contracts or not, are agents of the company so far that the company may be notified through them of any facts that concern the company.

If a man whose life is insured dies, they notify the company through an agent, and either Loomis or Elmore would have been a sufficient agent of the company, so that a notice to them would ordinarily be notice to the company of such fact. The plaintiff gave Elmore notice of the state of facts as they existed, and this must be considered as notice to the company; and though he may not have had any right to bind the company by any such contract, the company, when notified through him, should speak through him, or in some other way, and give the notice that no such arrangement will be made in the specified case. But, on the contrary, when Elmore is notified of the state of the case, he gives the desired information in'regard to the dividend, and then says to the plaintiff, You can pay this premium, half cash and half note, if you wish, notwithstanding you have been notified to pay all cash, and after I have received your notice that the time has passed in which, by its terms, it should have been paid. The company were called on to speak when they were notified that this plaintiff had allowed his premium to go by the time, upon the representations and assurances of their agent, and that he was still trusting those assurances. They should have denied the fact as stated, or in some way have given him to understand that he could not rely with safety upon those representations and assurances, — but instead, the company say nothing; but their secretary says, You may thus trust, and no advantage shall be taken of you. We think the company must in that way be held to have ratified what their agent said, and to have waived all objection to that course. They are estopped to deny that they did so. •

So, in Glidden v. Unity, 83 N. H. 571, 577, it is said that in all American courts, towns and other corporations are now to be considered as subject to the same presumptions and implications arising from their corporate acts, or the acts of their agents within the scope of their authority, without either vote, deed, or writing, as in the case of natural persons. This statement of the law is taken substantially from 2 Kent’s Com. 290, and authorities there collected in note b. A promise may be made directly by their agents acting within the scope of their authority, or such promise may be implied against the corporation from the acts of its agents within their authority, like natural persons. Smith v. Meetinghouse, 8 Pick. 178. So, in Angeli & Ames on Corp., sec. 237, it is said that a corporation may as well be bound by express promises through its authorized agents as by deed, and that promises may as well be implied from its acts and the acts of its agents, as if it had been an individual; — and see authorities in note.

So, in Pierce v. Insurance Co., 50 N. H. 297, it was held that a condition inserted in a policy for the benefit of the company might be waived by the company, and that the declarations or acts of an agent of the company are competent evidence of such waiver by the company ; and so in Lyman v. Littleton, 50 N. H. 42. Clark v. Insurance Co., 6 Cush. 342, and Heath v. Insurance Co., 1 Cush. 257, as well as Lyman v. Littleton, 50 N. H. 42, are authorities to the point, that, when a particular objection to notice or to proof of loss, or to anything which is required to be done, is made and insisted on, and no others are suggested, it will be considered as a waiver of other objections. To the same point are Vos v. Robinson, 9 Johns. 192, Insurance Co. v. Tyler, 16 Wend. 885, 401, and McMasters v. Westchester Co. Ins. Co., 25 Wend. 379. There must be

A decree for the plaintiff.