Imágenes de páginas
PDF
EPUB

bility.1 And where an agent who had been ordered to procure insurance to a certain amount, did so, and afterwards, without authority cancelled the policy and obtained another for a smaller amount, he was held liable for the original amount, deducting the premium.2

If a broker effects insurance for a part-owner and receives from the underwriters on a loss taking place, the whole value of the property insured, he cannot as agent, dispute the claim of his principal to the whole amount.3

The authority of the agent to effect insurance, may be revoked at any time before he has entered into a binding contract with the underwriters. And if he does any acts after this, he does them in his own wrong. Bankruptcy also, of the principal,

1 Thus, insurance agents who neglect to obtain insurance are generally considered as liable for the amount which their principal would have obtained from the insurers, had they obeyed their instructions. They are, therefore, entitled to deduct the amount of the premium. Petrie v. Aitchison, 3 Sess. Cas., Scotland, 501; De Tastett v. Crousillat, 2 Wash. C. C. 132; Morris v. Summerl, id. 203. And if the policy would have been void had the agents obeyed their instructions, they are not liable for not effecting the insurance. Alsop v. Coit, 12 Mass. 40; Webster v. De Tastet, 7 T. R. 157. See also, Delany v. Stoddart, 1 T. R. 22. So, if the non-insertion of a particular clause, contrary to orders, in no respect injured the insured. Fomin v. Oswell, 3 Camp. 357. In one case, where a suit was brought on the policy, which was not successful, on account of a concealment of a material fact by the broker, and then an action was brought against the broker, it was held, that the broker was liable, but not for the expenses of the suit on the policy, it not appearing that the suit was brought by the desire or with the concurrence of the broker. Seller v. Work, 1 Marsh. Ins. 299.

In Maydew v. Forrester, 5 Taunt. 615, the assured, who had sustained losses to the amount of £18,000, failed in two suits in consequence of the neglect on the part of the defendants, who were brokers, to communicate certain material letters to the underwriters, and incurred costs to the amount of £2,400. They then gave the defendants permission to try as many more causes as they saw fit, which they declined. The plaintiffs afterwards refunded to certain underwriters, who had paid the losses without being sued, the sums so paid, without offering the defendants the option of insisting on the plaintiffs' right to retain the money so paid. The judge before whom the case was tried, left it to the jury to say "whether the plaintiffs were bound so to mix themselves with the brokers, that they were precluded from paying back those sums to the underwriters without resisting an action for them." The jury having found for the plaintiffs on the ground, that they had pursued a reasonable course, the court refused to set aside the verdict.

2 Gray v. Murray, 3 Johns. Ch. 167. 8 Roberts v. Ogilby, 9 Price, 269.

Warwick v. Slade, 3 Camp. 127.

And if the

acts as a revocation of the authority of the agent. broker pays over the premium to the insurers after he is informed by his principal that the risk has not been run, he cannot recover it from his principal.2 In one case, the broker engaged to effect insurance with such "names" as should be to the satisfaction of the insured. The voyage was performed and the insured did not ask to see the names on the policy, and it was held in a suit by the broker for the premium, that it was not intended that the names of the underwriters should be submitted to the assured for previous approbation, but merely that they should be unexceptionable names, and it was held, that the broker was entitled to recover.3

SECTION IV.

ON THE RIGHTS OF INSURANCE AGENTS.

The first and most important right of an agent (which grows out of the general principles of mercantile agency) is, his lien on the policy, and thereby a claim on the insurers for a loss under the policy, for his indemnity for all his charges, expenses, and liabilities in, about, and on account of the same policy. But his lien is confined to these, unless there be an agreement

1 Parker v. Smith, 16 East, 382; Minnett v. Forrester, 4 Taunt. 541.

2 Shoemaker v. Smith, 2 Binn. 239.

Dixon v. Hovill, 4 Bing. 665.

* See Man v. Shiffner, 2 East, 523; Green v. Farmer, 4 Burr. 2214. This question was much discussed in Dixon v. Stansfeld, 10 C. B. 398, 11 Eng. L. & Eq. 528. In this case there had been extensive dealings between the parties, the defendants acting as factors for the plaintiffs. While this state of things continued, the defendants received orders to effect insurance on a vessel, which they did, and claimed to hold the policy as security for the balance of their general account as factors. The evidence in the case was somewhat voluminous, and the court held on the whole that the transaction in question was not made by them as factors, and it was accordingly held that the lien claimed did not exist. Maule, J., said: “I find nothing in the case to show that this policy was effected by (the defendants) in the course of their business as factors. A factor is a person who is employed to sell goods on commission. There was no employment to sell at all connected with the employment under which this policy was effected."

of the parties extending it; or a usage of the place where both parties reside; or a custom between the parties themselves, sufficient to have this effect. Whether he may retain, as his indemnity for future or immature liabilities for his principal, sums paid on the policy, must depend upon whether he has such lien on the policy, or upon his having incurred these liabilities rightfully on the credit of the policy.2

As a lien is, at common law, only a right of retaining and continuing possession, it is lost by a voluntary giving up of the possession. But that means a giving of it up to the principal, or for his benefit; for if the agent hands the policy to another person to hold for the benefit of the agent, this is still, by construction, his possession. It is held, however, that he may keep only, and not use; and therefore if he pledge it as his own, and for his own use, he loses his lien.5

But he may assign his balance or his demand against his principal to a third person, and if he holds the policy as his security therefor, he may transfer this security also, by placing the policy in the hands of the assignee, to be thus held for the benefit of the agent. An agent may have possession of the policy for a special purpose only, as for custody, and in such a case, although he makes advances to the insured, he has no lien therefor on the policy. But even if a broker has a lien on the policy for premiums which he has paid, he cannot refuse to produce it in a suit against the underwriter, and he is a good witness to prove all matters connected with the policy.

So, it is said, he loses his lien, by taking a promissory note or a bill of exchange, payable in the future, for his claim on his princi

1 See Castling v. Aubert, 2 East, 325. By the usage of trade a factor has a lien for the balance of his general account. Godin v. London Ass. Co., 1 Burr. 489, 494; Hammonds v. Barclay, 2 East, 227; Man v. Shiffner, 2 East, 523. But only for his services as factor. Dixon v. Stansfeld, note supra.

2 See Olive v. Smith, 5 Taunt. 56.

3 Cranston v. Philadelphia Ins. Co., 5 Binn. 538. See also, Sweet v. Pym, 1 East, 4.

4 Urquhart v. M'Iver, 4 Johns. 103.

5 M'Combie v. Davies, 7 East, 5.

6 See Urquhart v. M'Iver, 4 Johns. 103.

7 Muir v. Fleming, Dowl. & R., N. P. 29.

8 Hunter v. Leathley, 10 B. & C. 858.

[ocr errors]

pal.1 The reason is, that this is now an agreement for a credit; and therefore, by implication, waives the lien on the policy. But this must depend upon the question of intention, whether the terms of the credit were inconsistent with the existence of the lien; and this must depend upon principles which we have before considered.2

If he loses his lien by restoring the policy to his principal, and while his claims are unpaid and unsecured, the policy returns into his hands from his principal, in general his lien revives, unless something said or done indicates that this is not the purpose of the parties.3 And this has been held where the agent recovered possession of the policy, for this purpose in fact, but on a different pretence.1

If the insurance is effected under a special order, the terms of which are inconsistent with the existence of a lien, it is held that none exists, as where an agent who is ordered to effect insurance and forward the policy, does the former but retains the policy, it is held that he has no lien.5

A sub-agent has no lien on the policy as against the agent who is his principal, for the general balance of accounts. Nor has he a general lien against the first principal, if he knew or had cause to know that the person who employed him was only an agent. But if he did not know that he was a sub-agent, and supposed that he was effecting insurance for his employer who was the actual insured, it might be otherwise; but this exception does not appear to us to be unquestionable.

Even if the agent have no lien on the policy itself, it is possi

1 Hewinson v. Guthrie, 2 Bing. N. C. 755.

2 See Vol. I., p. 502, n. 3.

8 Levy v. Barnard, 2 J. B. Moore, 34, 8 Taunt. 149; Spring v. South Carolina Ins. Co., 8 Wheat. 268. It was held in this latter case that the lien revived for specific, but not for general advances. But in Whitehead v. Vaughan, Cooke's Bankruptcy Laws, 8th Ed. 576, it was held that the lien for premiums other than that due on the policy in question, revived on the broker's obtaining possession again of the policy. * Whitehead v. Vaughan, Cooke's Bankruptcy Laws, 8th Ed. 576.

5 Reed v. Pacific Ins. Co., 1 Met. 166. See also, Walker v. Birch, 6 T. R. 258. 6 Man v. Shiffner, 2 East, 523.

7 Maanss v. Henderson, 1 East, 335. See also, Snook v. Davidson, 2 Camp. 218; Foster v. Hoyt, 2 Johns. Cas. 327.

8 Mann v. Forrester, 4 Camp. 60; Westwood v. Bell, id. 349. But see Lanyon v. Blanchard, 2 id. 597.

ble that he may have, by the local law of set-off, or by agreement with his principal, or a practice and usage which affect both parties, a right to demand and receive and receipt for sums payable from the insurers, and to set these off against his demands upon the insured. The questions, however, which have arisen on this subject, have turned so much on the peculiar laws of set-off of different countries, that we do not propose to consider them in detail.1

If an agent is answerable to his principal for a loss, either because he has for a commission guaranteed the policy, or because he is answerable for his negligence in not procuring any, or any sufficient insurance, he is, in respect to salvage, subrogated to his principal's rights, and may have his claim for salvage, or any similar allowance.

If a principal could sue his insurers only by making an abandonment, and sues not. them but an agent by whose fault the insurance failed to be made, it seems that there must be an abandonment to him to convert a partial into a constructive ▸ total loss.2

An agent on commission, paying a loss guaranteed by him, may, it seems, sue the insurers in the name of the insured, if the policy be payable only to him, or in his own name, if the policy be made out to him.3

An agent may be liable to the insurers for the premium. But he can be liable for nothing more than his principal is or would be liable, if there were no agency.*

1 The English cases are fully considered by Mr. Arnould, Vol. 1, p. 115–126. See also, Olive v. Smith, 5 Taunt. 56; Rose v. Hart, 8 Taunt. 499; Young v. Bank of Bengal, 1 Moore, P. C. 150; Dixon v. Stansfeld, 10 C. B. 398, 11 Eng. L. & Eq. 528; Leeds v. Marine Ins. Co., 6 Wheat. 565; Moody v. Webster, 3 Pick. 424.

2 See 2 Duer, Ins. 326.

8 See 2 Duer, Ins. 336.

See Shee v. Clarkson, 12 East, 507; Phœnix Ins. Co. v. Fiquet, 7 Johns, 383.

« AnteriorContinuar »