Atlas Assurance Co. v. Kettles

Atkinson, J. 1. Elaboration of the ruling announced in the first headnote is unnecessary. 2. This was an action against an insurance company for loss covered by a fire-insurance policy. By way of defense the company urged that the policy was void, because the person who signed it as agent for the insurance company was not an agent of the company and the policy was not binding as a contract. The policy purported to be signed by the company’s agent who was authorized to sign it. Evidence was offered to show that in fact the insurance was procured and the policy written and the agent’s name signed thereto by a clerk in the office of the agent, whom the latter had directed to solicit insurance, collect premiums, and deliver policies during his temporary absence. This evidence was admitted over objection. It was urged that the power of the agent to sign policies of insurance was non-delegable, and that the effect of the evidence was to show action by the clerk under an ineffectual attempt by the agent to delegate authority to sign his name, and that the signing of the agent’s name by his clerk was not binding upon the company. We will not decide whether, if nothing more appeared, the signing of the agent’s name to the policy by his clerk would have been unauthorized. On this subject see 1 Biddle on Insurance, § 121; Kerr on Insurance § 113; Rohrbough v. United States Express Company, 50 W. Va. 148 (40 S. E. 398, 88 Am. St. E. 849); Springfield Fire Ins. Co. v. [308] Price, 133 Ga. 687 (2), 690 (64 S. E. 1074). But we will deal with the case actually before us. In connection with the evidence objected to there was other evidence tending to show that on return of the agent he was informed hy the clerk that the policy had been written and his name signed thereto, and part of the premium collected, all of which the agent sactioned; and that a few days thereafter, and before the fire, he collected the balance of the premium and delivered the policy to the agent of the insured. The admissibility of the evidence objected to must be decided in the light of this additional evidence. The question will be decided from the standpoint of the law in this State, which requires policies of insurance to be in writing and signed by the company or by some one duly authorized. Civil Code (1910), § 2470; Delaware Ins. Co. v. Penn. Fire Ins. Co., 126 Ga. 380 (4), 386 (55 S. E. 330, 7 Ann. Cas. 1134). It is the rule that if a person directs another to sign his name to a contract, and the other signs.it in the presence of the person giving the direction, and after it is signed it is delivered by the person whose name is signed thereto, the signing will be deemed the original act of the person giving the direction, rather than action by an agent under the exercise of a delegated authority. A leading case on this subject is Reinhart v. Miller, 22 Ga. 402 (68 Am. D. 506). The principle has been applied a number of times since that case was decided. Hawes v. Glover, 126 Ga. 305 (55 S. E. 62); Merchants & Farmers Bank v. Johnston, 130 Ga. 661 (61 S. E. 543, 17 L. R. A. (N. S.) 969, 14 Ann. Cas. 546); Hansen v. Owens, 133 Ga. 648 (6), 653 (64 S. E. 800), and citations. If the person giving the direction does not stand by and see his name signed, but, after it is signed under his direction, sanctions the signing and personally delivers the paper to the other party to the contract as signed by himself, such utterance of the paper should, upon the principle of the authorities above cited, render the signing of the name in legal effect the original act of the person directing his name to be signed. Under the circumstances enumerated above, the action of the clerk would be merely auxiliary, while that of his employer would be culmination of the contract. The case differs entirely from complete execution of a contract, required to be in writing, by an agent acting under parol authority, where, after the paper is finally delivered by the agent, the reputed principal attempts by parol to [309] ratify the action of the agent. Snch was the case of Pollard v. Gibbs, 55 Ga. 45, and cases therein cited. Different principles apply to the two classes of cases, and they must not be confused. The case of Reinhart v. Miller, supra, was one wherein the person who actually signed the name did so immediately after he was directed by the other person to sign it, and after going out of the immediate presence of the person giving the direction; and it was held that the execution needed no ratification in order to make it binding upon the person directing it to be signed. In Speckles v. Sax, 1 E. D. Smith (N. Y. Com. Pleas), 253, the question was whether a -lease was executed by a woman. It appeared that the lease was shown and read to the woman, and she, knowing its contents, took a pencil to sign it, but found that her name had been subscribed by her brother, who had himself signed as security; and she thereupon delivered the agreement, stating that she supposed he had written her name, and that it was all right. In the course of the opinion it was .said: “This, then, was an adoption by the plaintiff of the signature voluntarily, with full knowledge of the contents of the paper, and that her brother had seen and endorsed it. There was no fraud or imposition, and the delivery was made with the agreement thus signed as her act. It must have the same effect as if she had executed her first intention, by writing her name herself.” In Davis v. Cleghorn, 25 Ill. 212, it was held: "A man may bind himself to an agreement to which his own name is affixed, by procuration or adoption, as well as by his own hand;” and in a suit against an alleged indorser 'on a promissory note, a plea of non est factum was dismissed where the affidavit alleged merely “that the signature to the assignment is not in the handwriting of the payee.” In Bartlett v. Drake, 100 Mass. 174 (97 Am. D. 92, 1 Am. R. 101), it was held that a person who appears before a magistrate and duly acknowledges execution of a deed to which his name “was subscribed by another, in his absence, thereby recognizes and adopts the signature as his own.” This ease was cited with approval in Hansen v. Owens, supra, where it was said: “A signature actually made by a grantor himself is good. If shown to have been made by another in his presence and at his request, it will bind him, especially when he delivers the deed as his own. Although a signature may not be made in either of these modes, but the grantor’s name may have [310] been signed by another not in his presence, he may adopt such signature as his own, and may 'acknowledge it as his signature before a proper officer; or he may estop himself from denying it by allowing others to act on it.” In view of the authorities, delivery of the policy by the agent and recognition by him of the signing of his name by his clerk under his direction would, in effect, be signing the policy by the agent and show no attempt to delegate the authority conferred upon him by the company to sign policies. There was no error in admitting any of the evidence offered to show the part in the transaction taken by the clerk and the instructions from his employer under which he acted, or in admitting the policy when offered in evidence. 3. The subject of insurance was a dwelling-house located on a lot to which the plaintiff had only a bond for title. The policy of insurance did not indicate the condition of the title, but contained the provisions: (a) “This entire policy of insurance shall be void if . . the interest of the insured be not truly stated herein.” (5) “This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void . . if the interest of the insured be other than unconditional and sole ownership; or if the subject of insurance be a building on ground not owned by the insured in fee simple.” It was urged by the company that the policy was void on account of violation of its provisions quoted above. The plaintiff undertook to show an estoppel against the company, and for that purpose offered evidence tending to show that after receiving his commission of appointment from the company, and a short time before the policy was signed, the agent, who was carrying on a real-estate business, negotiated the sale by which the insured acquired the property, and that the contract was closed by the insured giving promissory notes for the purchase-price payable at intervals, the last to fall due two years after its date, for .which he received the bond for title mentioned above. The defendant objected to the testimony as to the agent having conducted the negotiations, and also to the introduction of the notes, on the ground that information acquired by the agent at the time and under the circumstances indicated above would not be notice to the company, and that the evidence was irrelevant. There was no error in admitting the evidence. The notes, considered in connection with the bond for title, showed [311] the transaction, and tended to show knowledge of the agent of the status of the title at the time the policy was issued. If the agent had knowledge, at the time the policy was issued, that the insured had only a bond for title, his knowledge would be constructive notice to the company, and the company will be estopped from denying validity of the policy on account of the violation of the conditions of the policy quoted above. Springfield Fire Ins. Co. v. Price, supra; Atlanta Home Ins. Co. v. Smith, 136 Ga. 593 (71 S. E. 902). It does not affect the ease that the agent’s information may have been acquired while engaged in his individual pursuits disconnected from the business of the company. Under the rulings made in the casks above cited, knowledge of the clerk, at the time the policy was signed and delivered, that the plaintiff held only a bond for title would also estop the company from denying the validity of the policy. 4-7. The rulings announced in headnotes 4 to 7, inclusive, do not require elaboration. Judgment reversed on both bills of exceptions. All the Justices concur, except Beck, J., absent.