Planters' Insurance v. Ray

52 Miss. 325

• Court: Mississippi Supreme Court
• Decided: April 15, 1876
• Status: Published

Opinion

Casipbell, J.,

delivered the opinion of the court.

Appellee exhibited his bill against appellant, showing that he held a policy of insurance against loss by fire, issued to him by appellant,, on a certain building, which risk commenced on the 14th March, 1873, and terminated on the 14th March, 1874, and about the time of the expiration of the policy complainant applied in writing to J. H. Thompson, the general agent of the company at Beauregard, for a renewal’ of said policy during the term of one year, commencing at noon on the 14th March, 1874, and terminating at noon on the 14th March, 1875. Complainant at that time not having the money with him to pay the premium, and being regarded as perfectly good for the amount, said agent accepted the application, and wrote to the company, presenting the application and stating the facts ; and said company ratified the action of the agent, accepted the proposal of C. A. Ray (appellee), and filled out and forwarded the renewal of the insurance to said agent, at the same time informing the said agent by letter that they held him responsible for the' premium aforesaid. In November, 1874, the building mentioned was completely destroyed by fire, and was worth $2,000. The policy, held and claimed to have been renewed and in force at the time of the fire, was for $1,200. Notice of the loss was immediately given, and demand made on appellee for delivery of the renewal and payment for the loss, less the amount of the premium, which complainant had not paid, and the amount of which is not stated in the bill. The company refused to comply with complainant’s demand for payment, on the “sole ground that said contract of insurance had never been consummated.” The company induced the agent (Thompson) to return to it said renewal and letter written by it to said agent. The bill seeks discovery and production of the application for renewal, and of the letter of Thompson which accompanied it, and of the company’s letter to him, and of the renewal certificate, and prays specific performance of the contract of insurance and decree for $1,200. There is an alternative prayer and a general prayer for relief.

This bill was demurred to, on the grounds that there is no equity on its face, and it fails to show that the premium was ever paid to the company or its agent, and it shows that the contract for renewal was never executed, but was purely executory. This demurrer having been overruled, the decree was appealed from.

The bill presents a case entitling complainant to recover. The application for renewal of the policy, the statement by the agent to the company of the non-payment by the applicant of the premium, and the issuance by the company of the renewal paper, transmitted to its agent with a letter informing him that it held him responsible for the premium, constitute a contract to insure, as before, for one year, obligatory on the company. Undoubtedly, upon the facts stated, the agent was legally liable to tlie company for the amount of the premium, and bound to account to it for it. If he had so accounted, :and paid the company that premium, it would not be denied 'that the company was bound for the renewal. Shall the failure of the company to demand and receive from the agent the premium, for which it held him responsible, discharge it from liability? The instant that a right accrued to the company to demand of its agent the premium, its obligation upon "the renewal was irrevoeabty fixed ; for its right to the premium, was conditional on its issuance of the renewal. According to the. statements of the bill, Thompson, the agent, was responsible to the company for the premium, and Ray was liable to Thompson for it, and this bound the companj'' for the renewal. If the company chose to issue the renewal of its policy, and to look to Thompson, its agent, for the premium, it must be •considered as paid, so far as the liability.of the company is involved. This view disposes of the objection that the bill fails to show what is the amount of the premium. If the premium is to be considered as paid, as between Ray and the company, its amount is not a subject of inquiry. Nor was it necessary to tender the premium in the bill. As it must be •considered as paid, no tender was proper. This case must turn finally on the question whether the renewal was complete ■and consummated, or whether what occurred amounted to no more than negotiations between the parties for renewal, not brought to a final conclusion obligatory on all. The aver-ments of the bill show a renewal completed, and the decree •overruling the demurrer is affirmed, and leave given to appellant to answer the bill in sixty days.