Lane v. Raney.

MontgomeRY, J. Tbe defendant is now and was at tbe time of tbe matters set out in tbe pleadings, tbe general agent of North Carolina of tbe Penn Mutual Life Insurance Co., of Philadelphia, and tbe plaintiff was at that time one of tbe local agents of tbe defendant at New Bern. It appeal’s from all tbe testimony on that point in tbe case that tbe policy (the commission on tbe first premium of which being the subject-matter in dispute) was procured by the joint services of tbe.plaintiff and another agent (H. O'. Martin) of tbe defendant. In the'contract concerning tbe agency between tbe plaintiff and tbe defendant, tbe plaintiff agreed to abide by and follow tbe rules of tbe defendant’s office, one of the rules being on tbe subject of tbe division of commissions on first premiums on policies procured by tbe joint services of two or more of tbe special or local agents of the defendant. Tbe defendant in bis testimony said that tbe rule required that tbe agreement should be in writing and filed with tbe application for insurance, when tbe application was sent into' bis office. Tbe plaintiff testified that be knew there was a rule on tbe subject, and bad complied with it, as be understood it, in every instance, except tbe present one; and that bis understanding of - tbe rule was, that tbe agreement in writing was to be sent in “when the payment, was collected! upon tbe delivery of tbe policy.” Under either view of tbe agreement and rule tbe required notice was not given to tbe defendant by tbe plaintiff. Tbe *66 plaintiff knew on the sixth of June that all the preliminaries had been arranged, and that the application for the insurance was to’ be sent on to the defendant by Martin. It was sent ■off on the last-mentioned date to the defendant’s office and was unaccompanied by the agreement for division of commissions, as the rule required. No notice was afterwards given to the defendant until long after the premium had been paid and the commissions accounted for to the other agent, Martin. If it had been in contemplation that a note was to be given by the insured for the premium instead of money, as the plaintiff testified, was the understanding, the effect would be the same under the rule. The notice should have been given to Raney concerning the alleged claim, of the defendant to his part of the commissions when the application was sent in. Raney would have been entitled to the notice in order that he might reserve for the plaintiff out of the •collection of the note whenever paid, whether before, at or after its maturity, his part of the commissions. But the plaintiff contends that he was relieved of the duty to send forward, the written agreement at the time of the receipt of the application of insurance at the office of the defendant, on the ground that Martin, who was authorized by the defendant to discontinue and to create agency, was instructed 'by the defendant to discontinue the agency of the plaintiff, and in so doing, said to the plaintiff: “You are entitled to your commissions on that (the premium on the policy) anyway, so if .that is all, you can give the papers over to me now.” That conversation was on the 6th of June, the application for insurance being then in the possession of Martin to' be forwarded to the defendant, and that fact known to the plaintiff. That contention might be successful if Martin had. been authorized by Raney to have made the statement; but the defendant, had given him no such power. Martin Avas only authorized “to discontinue and to create agencies,” and he *67 could not bind Raney by bis promise or agreement for a pecuniary obligation disconnected with the discontinuance or creation of an agency. His Honor admitted the testimony of the plaintiff as to that conversation with Martin over thei objection and exception of the defendant, and we think in so doing he committed Error.