« ForrigeFortsett »
pany. The information furnished by him was alleged, as grounds of defense, that the insured at the request of the company's authorized | kept for sale and allowed gasoline upon the agent, it was for the company's benefit, and the premises, in violation of the terms and con company paid bim for the information.
ditions of the policy, and that, in her writIlartford F. Ins. Co. v. Josey, 6 Tex. Civ. ten application for the policy, she made a App. 290; Commercial U. Assur. Co. v. Elliott material misrepresentation in reference to ihe (Pa.) 13 Atl. 970.
building to be insured. The cause was tried Dungan had acted as foreman while the by a jury, and a verdict rendered in favor of house was being built, it had been recently the plaintiff. From the judgment entered completed and he knew as much about the thereon, and an order denying a new trial, the house as Mr. or Mrs. Brooks did.
defendant bas appealed. Burke v. Bours, 92 Cal. 108; Insurance Co. The policy was made out upon a printed of Pennsylvania v. O'Connell, 34 Ill. App. 357; form, in which, after the agreement of insurArfv. Star F. Ins. Co. 125 N. Y. 57, 10 L. ance, there were printed certain conditions to R. A. 609.
be observed by the insured, and certain limita Dungan's knowledge as to the number of tions upon the liability of the insurer. In the rooms in the bouse was the company's knowl. insurance part of the policy the defendant edge.
insured Mrs. Brooks for the term of one year Reynolds v. Iova & N. Ins. Co. 80 Iowa, 563. against all direct loss or damage by fire, "except
At the time the application was made out the as hereinafter provided," and intermediate this insured had no notice as to the scope of Free part of the policy and the printed conditions man's authority to employ Dungan to make and limitations were written, with pen and a diagram of the building for the use of the ink, the description of the property upon company. The act was within the general | which the insurance was made. One of these scope of his apparent authority and is binding printed conditions was as follows: "This upon the company.
entire policy, unless otherwise provided by Wheaton v. North British & M. Ins. Co. 76 agreement indorsed bereon or added bereto, Cal. 415; Furnum v. Phonix Ins. Co. 83 Cal. shall be void if any usage or custom of 246, and cases therein cited on page 257. trade or manufacture to the contrary not with
In filling out the printed form of the appli. standing) there be kept, used, or allowed on cation furnished by the company, Freeman the above-described premises benzine, bepzole, acted for the company and his act in writing gasoline, Greek fire, etc.” Testimony was down a false statement without Brooks' knowl given at the trial tending to sbow tbat gasoline edge would not avoid the policy even though is one of the articles of merchandise usually Brooks did sign the application without read kept in country stores, but that it is customary ing:
to keep it in a room or building by itself. It Continental Ins. Co. v. Pearce, 99 Kan. 396: / was also shown that, during the month prior McComb v. Council Bluffs Ins. Co. 83 Iowa, 247; to the fire, the insured would, in the daytime, Germania L. Ins. Co.v. Lunkenheimer, 127 Ind. bring small quantities of gasoline-one or two 536; Follette v. United States Mut. Acci. Asso. caps-from a building on another lot, which 107 N. C. 240, 12 L. R. A. 315; Wheaton v. was used for storing it, into a room within the Vorth British & M. Ins. Co. 76 Cal. 415; insured building, and adjacent to the store, for Beebe v. Ohio Farmers' Ins. Co. 93 Mich. 514, the purpose of selling it at retail to her cus18 L. R. A. 481.
tomers. Upon this evidence the defendant The misrepresentation referred to in the pol. requested the court to instruct the jury: "If, icy is a wilfully false or intentional misrepre. from the evidence, you fiud that, during the sentation.
period between the delivery to plaintiff of National Bank v. Union Ins. Co. 88 Cal. the policy of insurance in this action sued on 497; Wheaton v. North British & M. Ins. Co. and the fire, gasoline was at any time for
several days kept for sale in the building The company through its agents Freeman described in the policy, or in any part of said and Dungan made a personal inspection of the building your verdict should be for the defendbuilding, and had actual knowledge of the ant.” The court refused this instruction, but number of rooms contained therein.
told the jury: “If you find, from the evidence Under such circumstances the company is in this case, tbat gasoline was, during all or estopped from denying its liability on the pol- any portion of said time between the issuance icy.
of said policy and the said fire, an article of | Dicelling House Ins. Co. v. Brodie, 52 Ark. merchandise usually kept in country stores, 11, 4 L. R. A. 458.
then and in such case the fact that the insured
did keep for sale or allow gasoline, if she did, Harrison, J., delivered the opinion of the either by herself or agent, allowing or keeping
such article on the insured premises-that is, The defendant issued its policy of insurance babitually-is no defense to this action." It is against fire to Mrs. W. H. Brooks, the assignor urged by the appellant that, in giving this of the plaintiff, in the sum of $4,000, upon a instruction, and also in refusing to give the frame building occupied as a country store, one asked by it, the court erred.. and also upon household furniture and the A contract of insurance is to be interpreted stock of merchandise, “such as is usually kept by the same rule as is any other contract. It in country stores," while contained in said must be so interpreted as to give effect to the building. Before the expiration of the policy mutual intention of the parties as it existed at the insured property was 100 destroyed, the time of contracting, so far as the same is and the present action is brought to recover ascertainable. If it is reduced to writing, the for the loss thereby.sustained. The defendant intention of the parties is to be ascertained
from the writing alone, if possible. The whole it must be held that this was an “agreement
either the assured or ber husband had made by the evidence. Whether Mr. Brooks made any statements or representations to the agent any representations to the agent concerningibe in reference thereto. The defendant offered in number of rooms in the house was to be de evidence a document signed by Mr. Brooks termined upon a direct conflict of evidence; which is claimed to be the application. This aud, if the jury believed that he did not, bis document is indorsed: “Daily Report of Pol. signing the application with the ambiguous icy Issued for the Home Mutual Insurance phrase, “Less than fifteen rooms,” without Company. Instructions to Agents." The knowing that it was there or the purpose'for face of the policy is beaded, “Questions," wbich it had been inserted, cannot be conwith the following direction, evidently in strued as a written representation by him that tended for the agent of the defendant, viz.: the building contained less than fifieen rooms. "By baving the following questions so fully The rule that one who signs an instrument answered that the company can get a clear which contains terms of obligation upou bimidea of the risk, and can verify rates, the agent self is not absolved from such obligation by will avoid much unnecessary correspondence." showing ihat he signed the instrument without l'nder this are various printed questions, num. reading it, has no application like the present, bered consecutively to twenty-five, and be where the instrument signed contains no words neath these printed questions there was written, of obligation, and the clause invoked against upon a blank line on this printed page: "(26) the signer does not purport to be a statement by Less than fifteen rooms. The agent of the him, or in answer to a question put to bim. defendant testified thal, before he presented The policy sued on does not refer to this applithis document to Mr. Brooks for signature, he cation, or in any way incorporate its contents had written these words in the application into the conditions upon which the contract of from information which he had obtained from insurance is made: but the appellant sought by Dungan, and he did not testify that he made extrinsic evidence to connect the two instru. any inquiry of Mr. Brooks concerning the ments, and make the one dependent upon the number of rooms in the house. Mr. Brooks contents of the other. In such a case ihe evi. testified that, when the application was pre- dence should be very clear that the statements sented to bim for bis signature, he signed it in the application relied on to defeat the action without reading it, and that, when he signed were made by the applicant, and that, at the it, he had no knowledge that these words were time of making them, the applicant knew tbat there. It does not clearly appear whether the they were to form the basis of the policy to be matter referred to in these words was the sub- issued to him. Dunbar v. Phenix Ins. Co. 72 ject of a question which was intended to be Wis. 492; Schwarzbach v. Ohio Valley Protecput to Mr. Brooks, and to which no answer live Union, 25 W. Va. 663; Combs v. Hannibal was written in the application, or whether the Sav. & Ins. Co. 43 Mo. 148, 97 Am. Dec. 393; words constitute a statement written by the Rowley v. Empire Ins. Co. 36 N. Y. 550: May, agent of the defendant for the information of Ins. * 144 et seq. his principal. It is quite as consistent with the Certain rulings of the court at the trial were evidence on this point that the jury should excepted to by the appellant, but we are of the have found that these words were written by opinion that no error was committed in these the agent for the information of the company, rulings. The question asked of Freeman, "In as that they were an answer to any question whose bandwriting was the statement, 'Less put to Mr. Brooks by the agent. In the line than fifteen rooms?'” was subsequently stated numbered 24, the questions, "Have you per by him to be in bis own handwriting. The sonally examined the risk ?” and “Do you rec question whether Brooks stated to bim that ommend it?"are evidently questions which were there were less than fifteen rooms in the buildto be answered by the agent, and he testified ing was clearly leading, and was properly exthat the answer to the next question, "Has the cluded upon that objection. Whether Brooks risk been recently rejected ?" to wbich the an. made such a statement was a material point of swer “No” is written, was not discussed by inquiry, and it would have been competent for him with Mr. Brooks.
the defendant to ask of Freeman wbether any The court instructed the jury, in substance, statement was made by him on that subjeci, that if Mr. Brooks, in applying for the policy, and, if so, what it was; but the defendant made a written representation that the build- omitted to make such inquiry. Equally proper ing contained less than fifteen rooms, they was it for the plaintiff to show by Brooks that should find for the defendant; but, if they he did not make such statement, and that, at should find that the facts contained in the ap- the time he signed the application, he was not plication respecting the number of rooms were aware that the statement was there. The only obtained by the defendant from Dungan, and objection to these questions was that tbey from the diagram or plans furnished by him, were irrelevant and immaterial, and this oband that Brooks made no representation per jection was properly overruled. sonally in the matter, but signed the applica- The judgment and order are affirmed. tion without knowing wbat it contained as to the number of rooms, it did not constitute a We concur: Garoutte, J.; Van Fleet, J. defense. This instruction properly directed the jury in their deliberations upon their ver- Rehearing in banc denied, Beatty, Ch. J., dict, and their verdict thereunder is justitied | dissenting. 34 L. R. A.
NORTH DAKOTA SUPREME COURT. STANDARD OIL COMPANY, Appt., brings them squarely within the terms of the
bond, as partners. Mike ARNESTAD et al., Respts.
· Palmer v. Bagg, 64 Barb. 641; Bates, Partn.
$ 655, p. 688, and cases therein cited. (...6...N.D. 255
Mr. F. W. Ames, for respondents:
The principals in the bond are Mike Arne*Sureties who sign a bond for the fidel. stad and Ole Eggerud, copartners as Arnestad
ity of a firm as agents for the obligee are not & Eggerud, and it is their fidelity, and that of liable for funds misappropriated by one of the their employees, and those to whom they may members of such firm after the dissolution of the intrust the business of the appellants, that are partnership and the retirement of the other part- expressly undertaken by the respondent surener from the business of such agency. And this ties; the expression, "ör either of them,” as is the rule notwithstanding the fact that the ob- shown by the tenor of the whole bond imports ligee knew nothing of such dissolution.
nothing more than an intention to be respon(November 20, 1896.)
sible for the acts of either during the existence of the partnership.
2 Brandt, Suretyship & Guaranty, 2d ed. the District Court for Cass County in fa. $ 118; Simson v. Cooke, 8 .T. B. Moore, 588; vor of defendants in a proceeding brought to Harckins v. New Orleans Printing & P. Co. enforce a bond which had been given by de 29 La. Ann. 134. fendants for the fidelity of a firm which had
A surety cannot be beld beyond the express been appointed to act as agents for the sale of terms of bis contract. plaintiff's goods. Affirmed.
Rev. Code, 4651; Miller v. Stewart, 22 U. The facts are stated in the opinion.
S. 9 Wheat, 680, 6 L. ed. 189. Mr. Melvin A. Hildreth, for appellant:
A surety wbo guarantees that a firm comThe defense of a dissolution of partnership posed of particular individuals will do certain is an affirmative defense, and must be proved acts or discharge certain duties, cannot be held by a preponderance of the evidence.
liable where there is a change in the firm, alThe statements and declarations of partners though the firm name is not changed. to their status or dissolution, or any
Dupee v. Blake, 148 Ill. 453; Barnett v. change in their relationship, should be closely Smith, 17 1. 565; 1 Brandt, Suretyship & scrutinized when others may be injuriously Guaranty, 2d ed. $ 118, etc.; Crane Co. v. affected by the establishment of any fact which Specht, 39 Neb. 123: Theobald, Principal & such declarations or statements may tend to Surety, 72; Simson v. Cooke, supra; Kipling prove. They are interested witnesses.
v. Turner, 5 Barn, & Ald. 261; Penoyer v. Clinton Lumber Co. v. Mitchell, 61 Iowa, Watson, 16 Johns. 100; Shano v. Vandusen, 5 132.
U. C. Q. B. 353; White Sering Mach. Co. v. In this state the common-law rule that the Hines, 61 Mich. 423, and cases cited; 2 Kent, contract of suretyship shall be strictly con
('om. 124; Backhouse v. Hall, 6 Best & S. 507; strued does not apply.
Manhattan Gaslight Co. v. Ely, 39 Barb. 174. Rev. Code, S 4652.
The fact that plaintiffs were not notified of The principle that the dissolution of a part
the change is immaterial. pership releases the sureties upon a bond cov.
Birch v. De Rivera, 24 N. Y. S. R. 770; 2 ering the acts of the partners, applies only
Parsons, Cont. 505. wbere the bond covers the acts of the partners partners only, and in those
Corliss, J., delivered the opinion of the cases knowledge of the dissolution was gen
court: erally brought home to the plaintiff. The
The object of this suit is to bold the defendcase at bar is distinguisbable, first, in ants, as sureties upon a bood, liable for the that the bond herein is a joint and sev- embezzlement of one of the principals in such eral bond and extends to the individual acts obligation. The Standard Oil Company, the of Arnestad and Eggerud, or either of them or plaintiff herein, having selected as its agents at their employees, or the employees of either of Mayville, in this state, the firm of Arnestad & them, or anyone to whom they or either of Eggerud, required of them a bond with sureties them, may intrust the business of the com
as a condition of shipping them its goods, to pany while acting as the agents of the plain be handled by them as suc
agents at that iiff: and second, the plaintiff had no knowi point. In response to this demand the bond in edge of the alleged change in this partnership. suit was executed by the firm, and by defendSee Palmer v. Bagg, 36 N. Y. 523; Hayden question before us relates to the liability of the
ants Hanson and Gullicks as sureties. The sole v. Hill, 52 Vt. 259.
The act itself of intrusting plaintiff's goods sureties.. Their only defense is that the bond to Arnestad & Lindstorm by the firm of secured the honesty of only the firm, and that Arnestad & Eggerud without notifying plain- before the embezzlement in question took place tiff and without plaintil's consent, was an act Eggerud had withdrawn from the firm, and of misappropriation of plaintiti's goods which that at the time the money sued for was misap
propriated the business of such agency was *Headnote by CORLISS, J.
being carried on by Arnestad and Lindstrom.
NOTE- The opinion of the court and the briefs in of a bond for the fidelity of a partnership, so that the above case seem to present very fully the au- no attempt will be made to annotate the case. thorities on the point in question as to the effect
As the construction of the bond is involved,] & Eggerud, or anyone to whom they may inwe deem it necessary to quote it in full: trust the business of the company.” Again, the
“Know all men by these presents: That we, bond provides that, “if the said Arnestad & Mike Arpestad and Ole Eggerud, copartners Eggerud shall faithfully and accurately peras Arnestad & Eggerud, principals, and John form the duties as agents for the said Standard P. Hanson and C. Gullicks, sureties, are held Oil Coropany, and shall correctly account for and firmly bound unto the Standard Oil Com- all' stock or funds belonging to the said company in the sum of five hundred dollars ($500), pany which shall be intrusted to bim or his lawful money, to be paid to the Standard Oil employees acting in his stead, whose acts he Company, its executors, administrators, and herein directly assumes, then the above obligaassigns, for which payment well and truly to tion to be void,” etc. It is evident that the be made we bind ourselves, our beirs, esecu. words, “to bim or his employees acting in his tors, and administrators, severally and collect stead, wbose acts be herein directly assumes," ively, firmly by these presents. The coudition were intended to express the plural instead of of the above obligation is such that if, through the singular. In preparing the bond, a blank the neglect, carelessness, or inattention to the was probably used wbich had been so worded business of the said company by the said Arne as to apply to a single agent. Looking at the stad & Eggerud, or either of them, or any of whole instrument, and interpreting it in the their employees to whom they may intrust the light of surrounding circumstances, we are un. business of the said company, the company able to find in it any purpose on the part of the shall sustain any loss or damage, then the sai obligors to give, or on the part of the obliger 10 Arnestad & Eggerud, and parties hereto sub exact, security for the act of either partner after scribed as sureties, shall indemnify the said the partnership as such had ceased to act for the company to the amount of this bond; and the plaintiff. Had this been the object of the par. subscribing parties also firmly bind themselves iies, an explicit provision to that effect could, to sustain and pay the Standard Oil Company, and certainly would, have been incorporated in not to exceed the amount of this bond, any loss the bond. We are therefore forced to fall back resulting to the said company through the upon the inquiry whether the law will imply theft or fraud on the part of the said Arnestad any promise on the part of the sureties to be & Eggerud, or anyone to whom they may responsible for Arnestad's honesty after be intrust the business of the company. The di- had ceased to be associated with Eggerud in rect purpose of this bood is to secure and the business. On this point we have no doubt. indemnify the said company against any loss A surety who engages to be responsible for from shortage on account of stock not being the honesty of a firm may be entirely iniluproperly accounted for, and loss on account of enced by the consideration that one of the funds belonging to the said company being partners is a man of integrity, and of such misappropriated by the said Arnestad & Egge strength of character, and such shrewdness and rud, or either of them, or anyone to whom they watchfulness in business affairs, that the risk shall intrust the business of the said company. of dishonesty from the action of the other If the said Arnestad & Eggerud shall faithfully partner, in whom the surety may place do and accurately perform the duties as agents for rust, is reduced to the minimum. The sure. the Standard Oil Company, and shall correctly ties in this case may have been willing to be account for all stocks or funds belonging to the come bounden for the fidelity of Arnestad & said company which shall be intrusted to him Eggerud wbile acting as a firm, and yet at the or bis employees acting in his stead, whose acts same time not willing to incur the hazard of be herein directly assumes, then the above obligating themselves as sureties of the partobligation to be void; otherwise to remain in ner Arnestad alone. Based upon such consid. full force and virtue.”
erations as these, the rule of law has long been It is urged that by the use of the words “or established that ibe surety, standing upon the either of them” the parties intended to cover the very letter of his contract, may insist that he individual defalcation of eitber member of the cannot be held for aught that is done after the firm as well after the dissolution of the firm as dissolution of the firm, for which alone he bebefore. But we are unable to discover any came responsible. Backhouse v. Hall, 6 Best justification for such a construction of the in. & S. 507; Dupee v. Blake, 148 Ill. 453; 2 Bates, strument. We think that these words were Partn. $$ 648-655; Birch v. De Rivera, 24 X employed (unnecessarily employed, it is true) to Y. S. R. 770. See also Penoyer v. Watson, 16 express what the law would have implied had Jobps. 100; Crane Co. v. Specht, 39 Neb. 123; they been omitted; i. e., that both partners need Manhattan Gaslight Co. v. Ely, 39 Barb. 174; not join in the wrongful act to render all parties White Serring Mach. Co. v. Hines, 61 Mich. to the obligation liable. The bond was given to 423; Barnett v. Smith, 17 II). 565; 24 Am, & secure the plaintiff from loss growing out of the Eng. Enc. Law, pp. 764, 75. The case of agency beld by;the copartnership, and there is Dupee v. Blake, 148 Ill. 453, so far as the prinnothing in its language to indicate that the ciple of law is concerned, presents the same parties were contracting with reference to a features as the case at bar. The court there possible dissolution of the partnership, and the said: “The rule is that, if a surety engages continuance of the agency by one of the firm. for an individual, the engagement is under: Other provisions of the bond indicate the exact stood to extend to the acts of that individual reverse. The instrument declares that “the alone, and will not continue if he takes in a subscribing parties also firmly bind themselves partner. In other words, the surety for a sinto sustain and pay to the Standard Oil Com-gle individual is not liable for a partnership of papy, not to exceed the amount of this bond, which such individual is a member. A surety any loss resulting to the said company through who guarantees that a firm composed of parthe theft or fraud on the part of said Arnestad | ticular individuals will do certain acts or dis