Train v. . Holland Purchase Ins. Co.

Per Curiam. The immediate question is, whether the motion for a nonsuit was properly granted, and the proper disposition of it is a matter of some difficulty. It depends *602 upon the fact whether before the fire the plaintiff had so contracted with the defendant as that he was bound to pay the premium. If we leave out of view the matter of the policy from the Andes company, we think it must be held that the plaintiff was bound. He had authorized Goggin, the agent, to obtain for him insurance in a good company. The jury might have found from Goggin’s testimony that the name of the defendant's company was mentioned between them. But whether so or not, the authority to apply for insurance in a good company, was an authority to apply to the defendant. (Ellis v. Alb. Fire Ins. Co., 50 N. Y., 402.) Then the application sent by Goggin to the defendant was the application of the plaintiff to the defendant, and as soon as it was accepted by the defendant the contract between them was complete The plaintiff was then bound to pay the premium, and the defendant was bound to indemnify the plaintiff. That the premium was not in fact paid, either to the defendant or to Goggin, is of no matter. The defendant was used to charge the premium to Goggin, and he had a right to and did give credit to the plaintiff. It was by this usage paid to the defendant; and so, that no rate was agreed upon. The application was made by Goggin with authority from the plaintiff. Goggin knew the rates of the defendant, and applied for an insurance impliedly at those rates. How let us consider, whether the existence of the policy from the Andes Company prevented that result. If we call the arrangement between the plaintiff and Goggin an agreement, the plaintiff had performed all that he undertook to do. He had surrendered his policy in the Andes Company to Goggin. Goggin, the agent of that company, had before that taken the surrender of policies and had canceled them, and his acts had been approved by his principal. Had Goggin when the plaintiff left with him this policy at once canceled it, if to cancel it required any thing to be done by way of effacing it, then all would have been completed between them which their agreement called *603 for. For though it was agreed that whatever amount of premium should be returned should be credited, it was not agreed that there should be a specific amount or any amount. So that though the Andes Company declined to repay any part of the premium, all would have been done which was by the terms of the agreement of the plaintiff and Goggin positively to be done. But it was not necessary that there should be a physical defacement of the policy. A surrender of it by the plaintiff to Goggin and the acceptance of it by him as agent of the Andes Company, with the intention on the part of both that it should no longer be a contract between the plaintiff and the company, was in effect a cancellation of it. It was a giving up of the contract by the plaintiff, and a “taking of it up” (which is the language of the agreement) by Goggin. That Goggin did not send it to the company as he was to do did not affect the plaintiff, for the plaintiff had put it in his power to do so, and as to the plaintiff the contract was annulled. It appears then that a jury might have found, that the plaintiff had kept his arrangement with Goggin, and was free from the Andes policy, and in a condition to apply to the defendant for insurance, the same as if the Andes policy had never existed. And we have shown that in such case his application was accepted, and a valid contract, binding upon both the plaintiff and defendant, effected. The taking afterwards of the Andes policy from Goggin by the plaintiff, or his lawyer, may or not have been an assertion that it had never been surrendered. If it had been once surrendered, and the surrender accepted, the taking it back (after the fire as the jury might have inferred), could not revive the contract or make a new one. Moreover, the plaintiff, in the position in which he was placed, had a right to take cautionary measures, and it was for the jury to say what was the meaning of the act. (Excelsior F. Ins. Co. v. Royal Ins. Co., 55 N. Y., 343.) The policy has the condition that if the insured shall have other insurance, of which the defendant is not notified, it *604 shall be void. To this there are two answers : first, the jury-might have found that the Andes policy was surrendered and taken up; second, the application was not put in evidence, and it does not appear that it does not contain a notification. Where the court at Circuit nonsuits the plaintiff on the whole case, who excepts thereto, he is not required to ask specifically to be allowed to go to the jury upon the whole case or upon any question, to enable him to present his exception to a court of review. We think that the court should have given the case to the jury Avith proper instructions, and for the error in not doing so, the judgment must be reversed and a new trial ordered. All concur; except Folger, J., dissenting, and Miller, J., not voting. Judgment reversed.