MR. Justice Neil,
after making the foregoing state-nent of facts, delivered tlie opinion of the Conrt.
1. The assignment of error filed by counsel for Mr. Coleman on the action of the chancellor in setting aside he first verdict is overruled. The court of chancery appeals found that the matters involved in that verdict were fairly debatable on the evidence, and, the chancellor having set aside the verdict on the ground that it was not sustained by the evidence, the order upon that subject cannot be disturbed here. Baugh v. Railroad, 98 Tenn., 119, 121, 122, 38 S. W., 433.
2. As to the construction of the contract:
It is observed upon a perusal of the original contract that it does not in terms fix the duration of the agency.
Assuming that the company had by reason of this fact the right to discharge its agent, Coleman, at pleasure, without assigning any reason, rested upon his want of faithfulness or efficiency, does it follow that he forfeited his interest in the renewal premiums? A solution of this question depends upon the nature of that interest. This must be determined from the contract itself, with its amendments and the practical construction, afforded by the conduct of the parties in respect thereof. It will be perceived, upon an attentive examination of the contract and amendments, that, although there is an indication heré and there to the contrary, the general agent’s commission on first premiums and [232] his percentage on renewal premiums are both regarded in the light of compensation to him for his services in obtaining policies for the company and thereby building up its business. This is especially noticeable in the amendments or additions. In the second of these no distinction is made between the two kinds of commissions, except in the amount. Each is referred to as equally the right of the general agent. The same is true of the third amendment, and of the fourth, and of the seventh.
The general purpose is further evidenced by the requirement in the tenth amendment that Coleman shall allow to his subagents seventy-five per cent, of “first year’s commissions.” There is, indeed, a clause in the body of the original contract wherein the general agent’s interest in the renewals is referred to as “a collection fee,” and the same term is used in the sixth amendment; but this characterization is overborne by the terms of the other amendments already referred to, by the fact that the expense of collecting the renewal premiums was only one per cent., and by the course of dealing between the parties, their understanding of it, and their mutual treatment, as set forth in the statement, supra, to the effect that both parties understood that the general agent, in sacrificing the greater part of the first year’s commissions to the subagents, was not only greatly augmenting the company’s business, but was building up for himself an estate in the renewals. Under the terms of the contract the company can itself collect the renewal premiums, or require the general agent to col[233] lect them. In case he should collect them, his interest in the renewals should he sufficient to guarantee the service. He could claim no extra compensation. In case the company should itself collect the renewals, it was not contemplated that the general agent would thereby lose his interest therein.
The company would have no right, hy a discharge of the agent arbitrarily and without cause, to forfeit and take to itself his earnings, stored up in the renewals. 4 forfeiture was provided for, under a discharge for cause, in the last paragraph of the original contract. This would, itself, under the rule, “Expressio unius eoa-clusio alterius ” preclude a forfeiture on any other grpund. There is, indeed, a provision in the contract that, upon the termination of the contract at any time, the company had the right “to transfer the business” of the agent to any person it may choose; but this by no means includes rights of property and interest in renewals already accrued, but merely the transfer of the agen-, cy. The forfeiture of rights is provided for only in the last paragraph, referred to, of the original contract.
So, the contract being without a provision for specific fault of the agent, such termination would not result in a forfeiture of his interest in the renewals, and he would be entitled to a judgment for the value thereof, to be ascertained through appropriate evidence.
We do not think the question arises as to whether defendant Coleman had an agency or power coupled with an interest, and we need not concern ourselves [234] with the inquiry whether the company could discharge him because of such power or agency. He had an interest, certainly, in the renewal premiums; hut his power to collect depended wholly upon whether the company would place them in his hands for collection. It could do so, but was not hound to do so; nor could its faibiro or refusal in this regard deprive him of his interest. The interest was his property, and the company héld it for him. He could lose it only under the grounds of forfeiture contained in the contract, already adverted to.
Thus far, in discussing the contract, we have assumed that it contained no provisions giving to the agency a specific duration or limit of time. The court of chancery appeals, however, as we understand their opinion, hold that the tenth amendment to the contract extended the whole contract to December 31, 1905. We do not wish to descend into the particulars of the excellent argument upon the subject contained in the opinion of the court referred to. It suffices to say that we think the conclusion reached is sound; but we do not think the fundamental question in the case, concerning the interest of Coleman in the renewal premiums, is at all affected thereby, since the true inquiry arising is whether he gave just cause for his discharge and thereby forfeited the renewals.
Free access — add to your briefcase to read the full text and ask questions with AI
MR. Justice Neil,
after making the foregoing state-nent of facts, delivered tlie opinion of the Conrt.
1. The assignment of error filed by counsel for Mr. Coleman on the action of the chancellor in setting aside he first verdict is overruled. The court of chancery appeals found that the matters involved in that verdict were fairly debatable on the evidence, and, the chancellor having set aside the verdict on the ground that it was not sustained by the evidence, the order upon that subject cannot be disturbed here. Baugh v. Railroad, 98 Tenn., 119, 121, 122, 38 S. W., 433.
2. As to the construction of the contract:
It is observed upon a perusal of the original contract that it does not in terms fix the duration of the agency.
Assuming that the company had by reason of this fact the right to discharge its agent, Coleman, at pleasure, without assigning any reason, rested upon his want of faithfulness or efficiency, does it follow that he forfeited his interest in the renewal premiums? A solution of this question depends upon the nature of that interest. This must be determined from the contract itself, with its amendments and the practical construction, afforded by the conduct of the parties in respect thereof. It will be perceived, upon an attentive examination of the contract and amendments, that, although there is an indication heré and there to the contrary, the general agent’s commission on first premiums and [232] his percentage on renewal premiums are both regarded in the light of compensation to him for his services in obtaining policies for the company and thereby building up its business. This is especially noticeable in the amendments or additions. In the second of these no distinction is made between the two kinds of commissions, except in the amount. Each is referred to as equally the right of the general agent. The same is true of the third amendment, and of the fourth, and of the seventh.
The general purpose is further evidenced by the requirement in the tenth amendment that Coleman shall allow to his subagents seventy-five per cent, of “first year’s commissions.” There is, indeed, a clause in the body of the original contract wherein the general agent’s interest in the renewals is referred to as “a collection fee,” and the same term is used in the sixth amendment; but this characterization is overborne by the terms of the other amendments already referred to, by the fact that the expense of collecting the renewal premiums was only one per cent., and by the course of dealing between the parties, their understanding of it, and their mutual treatment, as set forth in the statement, supra, to the effect that both parties understood that the general agent, in sacrificing the greater part of the first year’s commissions to the subagents, was not only greatly augmenting the company’s business, but was building up for himself an estate in the renewals. Under the terms of the contract the company can itself collect the renewal premiums, or require the general agent to col[233] lect them. In case he should collect them, his interest in the renewals should he sufficient to guarantee the service. He could claim no extra compensation. In case the company should itself collect the renewals, it was not contemplated that the general agent would thereby lose his interest therein.
The company would have no right, hy a discharge of the agent arbitrarily and without cause, to forfeit and take to itself his earnings, stored up in the renewals. 4 forfeiture was provided for, under a discharge for cause, in the last paragraph of the original contract. This would, itself, under the rule, “Expressio unius eoa-clusio alterius ” preclude a forfeiture on any other grpund. There is, indeed, a provision in the contract that, upon the termination of the contract at any time, the company had the right “to transfer the business” of the agent to any person it may choose; but this by no means includes rights of property and interest in renewals already accrued, but merely the transfer of the agen-, cy. The forfeiture of rights is provided for only in the last paragraph, referred to, of the original contract.
So, the contract being without a provision for specific fault of the agent, such termination would not result in a forfeiture of his interest in the renewals, and he would be entitled to a judgment for the value thereof, to be ascertained through appropriate evidence.
We do not think the question arises as to whether defendant Coleman had an agency or power coupled with an interest, and we need not concern ourselves [234] with the inquiry whether the company could discharge him because of such power or agency. He had an interest, certainly, in the renewal premiums; hut his power to collect depended wholly upon whether the company would place them in his hands for collection. It could do so, but was not hound to do so; nor could its faibiro or refusal in this regard deprive him of his interest. The interest was his property, and the company héld it for him. He could lose it only under the grounds of forfeiture contained in the contract, already adverted to.
Thus far, in discussing the contract, we have assumed that it contained no provisions giving to the agency a specific duration or limit of time. The court of chancery appeals, however, as we understand their opinion, hold that the tenth amendment to the contract extended the whole contract to December 31, 1905. We do not wish to descend into the particulars of the excellent argument upon the subject contained in the opinion of the court referred to. It suffices to say that we think the conclusion reached is sound; but we do not think the fundamental question in the case, concerning the interest of Coleman in the renewal premiums, is at all affected thereby, since the true inquiry arising is whether he gave just cause for his discharge and thereby forfeited the renewals.
In stating the foregoing' conclusions, we have not deemed it necessary to refer to, or quote from, the authorities cited to us, because every such case must at last turn upon the language of the contract under con[235] struction, aud the practical construction given thereto by the parties themselves, where there are facts available for the latter purpose. We have, however, examined the cases referred to, and others (Phoenix Mut. L. Ins. Co. v. Holloway, 51 Conn., 311, 50 Am. Rep., 21; Lewis v. Atlas Mut. L. Ins. Co., 61 Mo., 534; Newcomb v. Imperial Life Ins. Co. [C. C.], 51 Fed., 725; MacGregor v. Union Life Ins. Co., 121 Fed., 493, 57 C. C. A., 613; Spaulding v. N. Y. Life Ins. Co., 61 Me., 329; Frankel v. Mich. Mut. L. Ins. Co., 158 Ind., 304, 62 N. E., 703; Mills v. Union Central Life Ins. Co., 77 Miss., 327, 28 South., 954, 78 Am. St. Rep., 522; Burleson v. Northwestern Mut. Ins. Co., 86 Cal., 342, 24 Pac., 1064; Park & Iverson v. Piedmont, etc., Ins. Co., 48 Ga., 601; Stier v. Imperial Life Ins. Co. [C. C.], 58 Fed., 843; Jacobson v. Conn. Mut. L. Ins. Co., 61 Minn., 330, 63 N. W., 740; Insurance Co. v. Williams, 91 N. C., 69, 49 Am. Rep., 637; Ballard v. Insurance Co., 119 N. C., 182, 25 S. E., 867; Stagg v. Insurance Co., 77 U. S., 589, 19 L. Ed., 1038), some of which favor the conclusion we have reached, and some of which are adverse thereto, in a general way; but in each of them the contract commented upon and construed had in it something different from the controlling features which we have found in the contract before as in the present litigation.
3. We do not think that damages claimed for breach of the provisions contained in the last amendment to the contract are remote or too speculative for allowance. The kind of damages sustained, the loss of commissions, [236] was clearly within the contemplation of the parties. They, therefore, cannot be treated as remote. They are not so speculative as that they cannot be ascertained. It can be shown, from the transactions of the agent who succeeded Coleman, what was accomplished by him between the date of Coleman’s discharge and December 31, 1905, in respect of the class of contracts covered by the amendment referred to. This class of facts can be supplemented by evidence as to the efficiency, or the contrary, of Mr. Coleman as a general agent, and proper deductions may be made for the expenses that would be incurred in procuring policies of the kind referred to during the period mentioned. In this manner the amount of the original commissions, and his interest in renewals that would have arisen under the class of contracts above mentioned, and their value, can be estimated. The point is fully covered by the following authorities: Wells v. Nat'l Life Ass’n of Hartford, 39 C. C. A., 436, 99 Fed., 222, 53 L. R. A., 33, and note in latter volume on pages 76 and 77, and cases cited; Dennis v. Masefield, 10 Allen (Mass.), 138; Aetna Life Ins. Co. v. Nexsen, 84 Ind., 347, 43 Am. Rep., 91; Hitchcock v. Supreme Tent, etc., 100 Mich., 40, 58 N. W., 640, 43 Am. St. Rep., 423; Lewis v. Atlas Mut. L. Ins. Co., supra; Bagley v. Smith, 10 N. Y., 489, 61 Am. Dec., 756; Mueller v. Bethesda Mineral Spring Co., 88 Mich., 390, 50 N. W., 319; Wakeman v. Wheeler & Wilson Mfg. Co., 101 N. Y., 205, 4 N. E., 264, 54 Am. Rep., 676. And see [237] Emerson v. Pacific Coast & N. Packing Co. (Minn.), 104 N. W., 573, 1 L. R. A. (N. S.), 445.
We are of opinion that the decree of the conrt of chancery appeals was correct, reversing the action of the chancellor on the second, third, and fourth issues above copied. The decree of the court of chancery appeals, remanding the cause to the chancery court of Davidson county for trial on these issues and issue No. 1, is therefore affirmed.
There were certain issues filed by the defendant in the court below which were not acted on. It may be proper to say that the matter of those issues may be presented under the four issues above mentioned; that is, in determining whether Coleman was properly discharged by the company. The four issues which are copied above are really those which determine the controversy in its several branches, as is apparent from the discussion above appearing.
We affirm the decree of the court of chancery appeals, reversing the decree of the chancellor and remanding the cause for a new trial, as above indicated.
Coleman will pay so much of the costs of the appeal as are incident to bringing up for examination the first verdict. All of the other costs of the appeal will be paid by the complainant insurance company. The costs of the chancery court will be disposed of as may hereafter be decreed by the chancellor upon the final hearing of the cause.
The decree of the court of chancery appeals, dismissing the bill as to W. G. McAdams, is affirmed.