BROWN, J.
This is an action to recover the amount paid by plaintiff upon two promissory notes by him given to an agent of defendant in alleged payment of the premium on two life insurance^ policies, which policies were never delivered to him, but which notes were transferred by the agent to an innocent purchaser, to whom plaintiff so paid them. Plaintiff had a verdict in the court below, and defendant appeals from an order denying a new trial.
Although the evidence may be a little conflicting with respect to one or two matters, there is no serious controversy about the main facts. One Little was in December, 1894, and for some years prior 1 hereto, engaged in soliciting applications for life insurance in defendant company. He was appointed such agent by, and reported to, a state agent of defendant, whose headquarters were at Minneapolis. He was first appointed by one Shepherd, and again by one Joyce, who succeeded Shepherd as defendant’s state agent in September, 1894. In December, 1894, he procured from plaintiff an application for two policies in said company, of $5,000 each; and, at the time of making and signing the same, plaintiff made and [45]*45delivered to the agent his two promissory notes, for $395 each, in payment, as plaintiff alleges, of the first annual premium on the policies. At the same time said Little signed and delivered to plaintiff a receipt in the following words and figures, to wit:
“The Mutual Benefit Life Insurance Company.
752 Broad Street, Newark, N. J.
Received Dec. 6,1894, from Dr. R. N. Jackson, $790.00, being the first annual premium on $10,000, at age 38, which entitles the said R. N. Jackson to a policy, in accordance with the application, for the said sum of $10,000, provided the application of the said R. N. Jackson is accepted by the company, in which case this receipt will be binding on the company from the date of the medical examination. If declined, the premium will be returnable on surrender of this receipt. Frank E. Little, Agent.” Indorsed on side: “Payments for premiums are valid only when made to a duly-authorized agent of the company in compliance with its rules.
Amzi Dodd, President.”
The applications were forwarded to the company, and the policies were issued thereon, and returned to Little for delivery to plaintiff. Little never delivered them, or even called plaintiff’s attention to the fact that he had them in his possession. Upon being called upon by the state agent, Joyce, to report thereon, he returned the policies to Joyce, with the statement that he could not deliver them. The plaintiff claims that defendant failed and refused to deliver the policies as required by the terms of this receipt, and he asks to recover the amount of the notes, which he was compelled to pay to an innocent purchaser. The state agent, Joyce, tendered tbe policies to plaintiff in March, 1895, but plaintiff refused to accept them on the ground and for the reason, as now claimed, that the tender or offer was coupled with a condition that he pay the premiums. This claim on plaintiff’s part, is not sustained by the facts, as we shall see later.
1. The main issue in the case, and the one contested in the court below, is whether the defendant is bound by the act of Little in taking plaintiff’s promissory notes in payment or settlement of the premiums due. The question turned in the court below upon whether Little had implied authority to so act. We are of the opinion that the evidence as presented in the record is insufficient to show such authority.
[46]*46Little had no express authority to so act, and, on the contrary, was expressly forbidden by defendant to take or receive anything but cash in payment of premiums. He had been in the habit of taking the promissory notes of applicants in settlement of such premiums. It was his custom to do so. But in all instances the notes were payable to himself personally, and he negotiated them and remitted the money to the state agent. In some instances he sent some of the notes to the state agent, who, in turn, negotiated them, and reported the money to the company. In no instance'did Little or the state agent send any of such notes to the defendant, and the record wholly fails to show that defendant had any sort of notice of such custom or habit of Little. The plaintiff claims to have known of this habit and custom of Little, but from the evidence it is clear that his knowledge was confined to notes due in sixty days, — the time within which Little had to remit to the company, — and notes payable to Little personally. But there is no suggestion that he understood that such notes were sent to the company, or that the company knew anything about them; and the circumstances surrounding such custom and habit were not such as to make it the duty of the company to inquire, or to justify an inference that it had notice. ' The notes given by plaintiff were payable to Little personally, not as agent of defendant, and were due and payable in one and two years. They were never delivered to defendant or to its state agent, but were negotiated by Little, who converted the proceeds to his own use. He never at any time informed Joyce or defendant that plaintiff had given the notes, and, so far as the record shows, no notice of any kind in reference thereto reached Joyce or defendant for a year after the transaction, and more than seven months after plaintiff had refused to receive the policies.
The doctrine of implied authority in an agent to do a particular act beyond the scope of his agency rests on principles of estoppel, and on the ground that it would be unjust and inequitable to permit a principal to repudiate the acts of an agent, confessedly beyond his express authority, but which the principal knowingly permitted. To make out a case of implied authority in an agent to do acts beyond and in violation of his express authority, notice to the [47]*47principal must be shown. He cannot be held to have ratified, permitted, or acquiesced in a course of dealing or conduct on the part of his agent unless he had notice of such conduct or course of dealing, or the'facts surrounding such course of dealing were such as to make it his duty to inquire. Burchard v. Hull, 71 Minn. 430, 74 N. W. 163; Budd v. Broen, 75 Minn. 316, 77 N. W. 979; Thomas v. Swanke, 75 Minn. 326, 77 N. W. 981.
In this case there is no showing whatever that defendant had any notice that Little was in the habit of taking the promissory notes of applicants in payment of premiums, unless notice be imputed to it from the fact that its state agent had such notice. Little’s authority was limited to soliciting and receiving applications .for insurance, collecting the first annual premium, and delivering the policies when sent to him for that purpose. He had no authority to receive anything but cash in payment of such premiums. His instructions on this subject were explicit. The state agent had no greater authority. So far as the collection of premiums was concerned, both were bound and limited by the same restrictions. Neither could receive anything but money. In view of this, it is difficult to understand upon what principle notice should be imputed to defendant from the fact that the state agent had notice. The general rule is that notice to an agent, to be binding on, and constitute constructive or implied notice to, the principal, must be of facts within the scope of the agency, or of or concerning business engaged in by the agent by the authority of the principal. 1 Am. & Eng. Enc. (2d Ed.) 1146.
Free access — add to your briefcase to read the full text and ask questions with AI
BROWN, J.
This is an action to recover the amount paid by plaintiff upon two promissory notes by him given to an agent of defendant in alleged payment of the premium on two life insurance^ policies, which policies were never delivered to him, but which notes were transferred by the agent to an innocent purchaser, to whom plaintiff so paid them. Plaintiff had a verdict in the court below, and defendant appeals from an order denying a new trial.
Although the evidence may be a little conflicting with respect to one or two matters, there is no serious controversy about the main facts. One Little was in December, 1894, and for some years prior 1 hereto, engaged in soliciting applications for life insurance in defendant company. He was appointed such agent by, and reported to, a state agent of defendant, whose headquarters were at Minneapolis. He was first appointed by one Shepherd, and again by one Joyce, who succeeded Shepherd as defendant’s state agent in September, 1894. In December, 1894, he procured from plaintiff an application for two policies in said company, of $5,000 each; and, at the time of making and signing the same, plaintiff made and [45]*45delivered to the agent his two promissory notes, for $395 each, in payment, as plaintiff alleges, of the first annual premium on the policies. At the same time said Little signed and delivered to plaintiff a receipt in the following words and figures, to wit:
“The Mutual Benefit Life Insurance Company.
752 Broad Street, Newark, N. J.
Received Dec. 6,1894, from Dr. R. N. Jackson, $790.00, being the first annual premium on $10,000, at age 38, which entitles the said R. N. Jackson to a policy, in accordance with the application, for the said sum of $10,000, provided the application of the said R. N. Jackson is accepted by the company, in which case this receipt will be binding on the company from the date of the medical examination. If declined, the premium will be returnable on surrender of this receipt. Frank E. Little, Agent.” Indorsed on side: “Payments for premiums are valid only when made to a duly-authorized agent of the company in compliance with its rules.
Amzi Dodd, President.”
The applications were forwarded to the company, and the policies were issued thereon, and returned to Little for delivery to plaintiff. Little never delivered them, or even called plaintiff’s attention to the fact that he had them in his possession. Upon being called upon by the state agent, Joyce, to report thereon, he returned the policies to Joyce, with the statement that he could not deliver them. The plaintiff claims that defendant failed and refused to deliver the policies as required by the terms of this receipt, and he asks to recover the amount of the notes, which he was compelled to pay to an innocent purchaser. The state agent, Joyce, tendered tbe policies to plaintiff in March, 1895, but plaintiff refused to accept them on the ground and for the reason, as now claimed, that the tender or offer was coupled with a condition that he pay the premiums. This claim on plaintiff’s part, is not sustained by the facts, as we shall see later.
1. The main issue in the case, and the one contested in the court below, is whether the defendant is bound by the act of Little in taking plaintiff’s promissory notes in payment or settlement of the premiums due. The question turned in the court below upon whether Little had implied authority to so act. We are of the opinion that the evidence as presented in the record is insufficient to show such authority.
[46]*46Little had no express authority to so act, and, on the contrary, was expressly forbidden by defendant to take or receive anything but cash in payment of premiums. He had been in the habit of taking the promissory notes of applicants in settlement of such premiums. It was his custom to do so. But in all instances the notes were payable to himself personally, and he negotiated them and remitted the money to the state agent. In some instances he sent some of the notes to the state agent, who, in turn, negotiated them, and reported the money to the company. In no instance'did Little or the state agent send any of such notes to the defendant, and the record wholly fails to show that defendant had any sort of notice of such custom or habit of Little. The plaintiff claims to have known of this habit and custom of Little, but from the evidence it is clear that his knowledge was confined to notes due in sixty days, — the time within which Little had to remit to the company, — and notes payable to Little personally. But there is no suggestion that he understood that such notes were sent to the company, or that the company knew anything about them; and the circumstances surrounding such custom and habit were not such as to make it the duty of the company to inquire, or to justify an inference that it had notice. ' The notes given by plaintiff were payable to Little personally, not as agent of defendant, and were due and payable in one and two years. They were never delivered to defendant or to its state agent, but were negotiated by Little, who converted the proceeds to his own use. He never at any time informed Joyce or defendant that plaintiff had given the notes, and, so far as the record shows, no notice of any kind in reference thereto reached Joyce or defendant for a year after the transaction, and more than seven months after plaintiff had refused to receive the policies.
The doctrine of implied authority in an agent to do a particular act beyond the scope of his agency rests on principles of estoppel, and on the ground that it would be unjust and inequitable to permit a principal to repudiate the acts of an agent, confessedly beyond his express authority, but which the principal knowingly permitted. To make out a case of implied authority in an agent to do acts beyond and in violation of his express authority, notice to the [47]*47principal must be shown. He cannot be held to have ratified, permitted, or acquiesced in a course of dealing or conduct on the part of his agent unless he had notice of such conduct or course of dealing, or the'facts surrounding such course of dealing were such as to make it his duty to inquire. Burchard v. Hull, 71 Minn. 430, 74 N. W. 163; Budd v. Broen, 75 Minn. 316, 77 N. W. 979; Thomas v. Swanke, 75 Minn. 326, 77 N. W. 981.
In this case there is no showing whatever that defendant had any notice that Little was in the habit of taking the promissory notes of applicants in payment of premiums, unless notice be imputed to it from the fact that its state agent had such notice. Little’s authority was limited to soliciting and receiving applications .for insurance, collecting the first annual premium, and delivering the policies when sent to him for that purpose. He had no authority to receive anything but cash in payment of such premiums. His instructions on this subject were explicit. The state agent had no greater authority. So far as the collection of premiums was concerned, both were bound and limited by the same restrictions. Neither could receive anything but money. In view of this, it is difficult to understand upon what principle notice should be imputed to defendant from the fact that the state agent had notice. The general rule is that notice to an agent, to be binding on, and constitute constructive or implied notice to, the principal, must be of facts within the scope of the agency, or of or concerning business engaged in by the agent by the authority of the principal. 1 Am. & Eng. Enc. (2d Ed.) 1146. The taking of promissory notes in payment of premiums was not within the state agent’s authority. Had Little been in the habit of delivering policies, intrusted to him by defendant for delivery, upon the receipt of promissory notes in payment of the premiums, or had such a delivery been made in this case, a very different question would probably be .presented.
2. We are also of the opinion that the transaction between plaintiff and Little, in so far as the promissory notes are concerned, on the evidence as presented in the record, was a personal one between them, and in no way binding on defendant, and that plaintiff never understood that he gave the notes in payment of the premium. In his application for the policies he states to the company that the [48]*48premium has not been paid, though Little then held the notes he now claims were given in payment. If he had understood that the notes had been given in payment, he certainly would have made •it known when Joyce tendered him the policies in March, 1895. But he never made such a claim until long after he had refused to receive the policies, and not until he learned that the notes,had been negotiated by Little. On this subject Little, who was called as a witness by plaintiff, testified as follows:
“Q. The defendant in this case1 never got any benefit from those notes, did it? A. No, sir. Q. Whatever there was in it, you got individually? A. Yes, sir. Q. And they ran to you individually? A. Yes, sir. ® * * Q. This was between you and the doctor? A. This was between me and the doctor. Q. These notes were payable to you as an individual? A. Yes. Q. And you could negotiate them? A. Yes. Q. The company had nothing to do with that at all? A. Nothing with that transaction. Q. You got the money on them yourself? A. I did.”
Both these parties evidently understood that the notes belonged' to Little in his individual capacity, and that the company had no interest therein. They were due in one and two years, and plaintiff well knew and understood that Little must remit the money to the company within sixty days. Joyce may have conditioned the delivery of the policies upon payment of the premium when he tendered them to plaintiff, but it is not important whether he did or not. The record is silent as to any claim or pretense by plaintiff at that time that, he had paid the premium, by these notes or otherwise. He said absolutely nothing about it. His refusal to accept the policies was put upon the ground that he then had all the insurance he could well carry, and “under the circumstances” he thought he would not'take them. He gave the notes to Little for the purpose of being negotiated to raise the necessary money to pay the premium due on these policies, — intrusted them to Little for that purpose, — and Little betrayed the trust. Having so acted, plaintiff should not be permitted to shift the responsibility, and burden defendant with Little’s dishonesty, for which it was in no way responsible. Herrick v. Mosher, 71 Minn. 270, 73 N. W. 964.
3. The court below erred in permitting plaintiff to give in evidence declarations and statements made to him by the state agent, [49]*49Joyce, concerning what Joyce knew of the custom of Little in taking notes in payment of premiums. Such declarations and statements were not made by Joyce in the course of his agency, were concerning past transactions, and were wholly incompetent and inadmissible. Statements and declarations of an agent not made in the course of any business of the principal being transacted by him, but wholly with reference to ■ past transactions, are hearsay, and not binding on the principal. Rodes v. St. Anthony & Dak. Ele. Co., 49 Minn. 370, 52 N. W. 27; Mechem, Ag. § 714. For these reasons a new trial is granted.
Order reversed.