Hannawalt v. Equitable Life Assurance Society of United States

72 N.W. 284, 102 Iowa 667

• Court: Supreme Court of Iowa
• Decided: October 5, 1897
• Status: Published

Opinion

Given, J.

I. Appellant presents two questions, namely, whether the court erred in not submitting to the jury the question whether the notes of Durstine received by plaintiff were received in payment of his bill for medical examinations, and whether the court erred in rejecting certain evidence offered by the defendant in support of its defense of estoppel. It appears without conflict that for some time prior to 1891 the defendant was engaged in the business of life insurance, its principal office being in the city of New York. The plaintiff, a resident physician in the city of Des Moines, was employed as examining physician at that city under an agreement that the defendant would pay for that service five dollars for each applicant examined. For services rendered prior to January, 1891, the plaintiff forwarded his bills to the office in New York, and they were paid by checks from that office. The defendant having established a branch office in the city of Des Moines, with L. B. Durstine as general manager for Iowa, the plaintiff thereafter rendered his bills to that office.’ The plaintiff alone was examined touching the alleged payment, and the following is the substance of his testimony on that subject: That Durstine represented to him that the collections in connection with the Des Moines office were slow, and that they desired time, and requested that plaintiff hold his bill until things got easier; that the bill for 1891 was not rendered until about May, 1892; that Durstine represented that the funds were such that they could not then pay the bill, and that the only way plaintiff could get the money was to indorse a note in blank until such time as the money came in, and he (Durstine) executed his promissory note for one thousand dollars payable to the plaintiff sixty days after date, at Des Moines National Bank, with eight per cent, interest. This note Durstine took to the plaintiff, who indorsed it, guarantying payment, and waiving notice and protest. Durstine then took the note to the Polk County Savings Bank, by which it was purchased at the face value, and for which Durstine received a certificate of deposit which he delivered to the plaintiff, and which plaintiff thereafter used. This note was twice renewed, Durstine executing and plaintiff indorsing each renewal. Durstine paid the interest on these notes up to Se’ptember 1, 1893, and, being thereafter insolvent, plaintiff had to pay the last note and interest.

II. We first inquire whether the court erred in rejecting the evidence by defendant. The defendant offered the written contract between itself and L. B. Durstine under which Durstine was employed. Of this lengthy instrument it is only necessary to notice that Durstine was to canvass personally, and through subordinates, for applications for insurance on the lives of individuals; that he was to be compensated by a certain per cent, on premiums on policies issued through his instrumentality, and that he was to devote his entire time and energy to that service. Said instrument contains this provision: “The said society agrees to allow the said party of the second part, during the year 1891, for expenses,-per cent, of the first year’s premiums, which shall be in lieu of all expenses of every kind and nature whatsoever, chargable to said society, including rent of office, clerical hire, cost of medical examinations, county, state, and city licenses to agents, and a reasonable amount of advertising.” This offer was objected to as incompetent, irrelevant, and immaterial, “because it is not claimed that the plaintiff had any knowledge of the provisions of the contract.” The objection was sustained. In this connection the defendant also offered to prove by Mr. Curran, inspector of accounts for defendant, that in October, 1892, he inspected the accounts of Durstine; “that in such inspection he called upon Durstine, or his employes, for a statement of the unpaid medical examiner’s bills for his agency; that he was furnished a memorandum of such unpaid bills, and the bill of Dr. Hannawalt was not included therein.” It was said: “The defendant, in making this offer, states that it does not expect to prove that the plaintiff knew what was upon the books of L. B. Durstine with respect to the account in question.” It was further stated that defendant offered to prove by this witness that in October, 1892, he received for the defendant from Durstine four thousand five hundred and sixty-four dollars in payment of a balance due the defendant at that time; that this did not include anything on unpaid medical examiner's bills, but that Durstine at that time agreed to pay these bills by the last of December of that year. Objections to these offers were sustained on the ground that they were incompetent as against the plaintiff, he having no knowledge of the matter sought to be proven. It being conceded that the plaintiff had no knowledge of the provisions of the contract offered, nor of the examination made by Mr. Curran, nor the settlement between him and Durstine, it is clear that he was not bound thereby, and that these facts in no wise constitute an estoppel against the plaintiff to make claim for compensation from the defendant. Plaintiff’s contract for compensation was with the defendant, and not with Durstine. He had no knowledge of the agreement of Durstine with the defendant to pay for these medical examinations, and was not, therefore, bound to look to Durstiue for his compensation. Plaintiff made no representatons that misled Mr. Curran in his examination of Durstine’s accounts, nor in the settlement that he made with him. We think it entirely clear that this evidence was incompetent as against this plaintiff, and that there was no error in excluding it.

TIT, Appellant contends that, notwithstanding the positive testimony of the plaintiff, that he did not receive the note of Durstine in payment of- his. bill, yet, under all the circumstances disclosed, the question whether he did so receive the note should have been submitted to the jury. It is argued that there is no evidence to show that Durstine had authority to bind the defendant by his declarations made to the plaintiff concerning , the financial condition of the defendant or of the Des Moines agency. The declarations of Durstine constitute a part of the transaction upon which the claim of payment and estoppel are based, and are not dependent upon the scope of tbe authority of Durstine. We will not discuss the evidence on this question further than to say, that we think a verdict for the defendant could not have been sustained under it. The testimony of the plaintiff stands uncontradicted, either by other witnesses or by the circumstances, wherein he says he did not accept the notes, or either of them, in payment of his bill. Our conclusion is, that the judgment of the district court should be affirmed.