Veley v. Clinger

Opinion by W. D. Porter, J., The amended statement filed by the plaintiff alleged, in substance, that the defendants were a firm of insurance agents, “ whose business it was to negotiate contracts of fire insurance, namely, to procure contracts of insurance with fire insurance companies authorized by the laws of Pennsylvania for the protection of real and personal property from loss by fire for persons desiring such insurance; ” and that on November 10,1897, they undertook to procure for the plaintiff a policy in the amount of |300 upon her household furniture and received from her the sum of #4.05 for the purpose of pajfing the premium, that by reason of said contract the plaintiff was hindered and prevented from securing insurance elsewhere, that the defendants neglected and failed to cause said insurance to be procured and that the property was destroyed by fire on January 21, 1898, and by reason of the failure and negligence of defendants the plaintiff was without insurance at the time of said loss. The evidence at the trial established the existence of the defendant firm and the character of its business to be as alleged in the statement; and that Carpenter, one of the partners, did on November 10, 1897, undertake to procure insurance in the amount stated upon the property described; these facts were admitted by the defendants. The place of business of the defendant firm was at Williamsport, and the agreement between the plaintiff and Carpenter as to this insurance was made at Cammal within the same county, Lycoming, while the latter [129] was negotiating other insurance in the same neighborhood. Carpenter was on the next day back at the office of the defendant firm, in Williamsport, and in examining the records of the firm discovered that this very household furniture, as well as the dwelling which contained it, was covered by two policies which had been procured by the firm on September 2,1897. At the time Carpenter entered into the agreement upon which this action is founded, he did not know or had forgotten, that the furniture was already insured and the plaintiff said nothing about that fact. The facts with regard to the existence of the two policies dated September 2, 1897 and the circumstances under which those policies came to be issued are practically undisputed. The real estate was subject to a mortgage to the Baltimore Building & Loan Association, which under the terms of the mortgage had the right to demand insurance upon the buildings, said insurance had been effected on September 2, 1896, for one year, and when those policies were about to expire the attorney of the mortgagee instructed the defendants to procure a renewal of the insurance and the policies dated September 2, 1897 were procured in pursuance of those instructions. Those policies insured the interests of both the plaintiff and her mortgagee, and were delivered by the defendants to the mortgagee. The plaintiff had been notified by the defendants that these policies had been issued and she offered in evidence at the trial a written statement by the defendants, dated October 1,1897, giving the numbers of the policies, the companies by which they were issued, the amounts of the premiums and showing that they covered the dwelling and furniture; this paper, “ Plaintiff’s exhibit C,” was a part of her case in chief, and it thus, appeared upon her own showing that she knew of the existence of these policies over a month before her agent undertook to negotiate with Carpenter for additional insurance upon the furniture. Carpenter, on November 11, 1897, wrote to the plaintiff in regard to his having received, on the day before, the sum of $4.05 to pay the premium on $300 insurance on the household furniture and called her attention to the fact that the furniture was covered by the policies of September 2, 1897, and that the premiums upon those policies had not been paid and that he had applied the $4.05 to that account; and for this reason they had not caused the policy for the $300 to be written. The defend [130] ants produced evidence that this letter was mailed on the date it was written. The plaintiff was notified to produce this letter, and did actually produce it at the trial. It is true that the plaintiff and her husband, who acted as her agent in this matter, testified that they did not remember when this letter had been received, but this failure of memory cannot benefit them under the circumstances here presented. When it is proved that a letter has been duly mailed and the persons to whom it was addressed produces it at the trial in obedience to notice, they will, in the absence of evidence to the contrary, be presumed to have received it in the ordinary course of the transmission of the public mails. The evidence in this case establishes that the plaintiff must have received this letter within two days after it was written. She then had notice that the defendants would not issue a new policy to her on the household furniture and that they had applied 'the money which she had paid them on account of the premiums of the policies already in existence. If the defendants were guilty of any breach of their contract it was then complete and the measure of damages would be ascertained as of that date. The plaintiff had sometime prior to this procured insurance upon the buildings through another agency, and that fact became known to the defendants about the time of this attempt to effect an independent insurance upon the household furniture. On behalf of the companies which had written the policies of September 2,1897, they insisted that there was an excess of insurance and that the policies issued through the other agencies should be canceled. After a correspondence between the plaintiff, the defendants, the other insurance agency and the officers of the Building & Loan Association, the plaintiff on November 22, 1897, peremptorily ordered the cancelation of the policies, dated September 2, 1897, which had been issued through the agency of the defendants. The defendants complied with this order, canceled the policies, charged a pro rata rate for the time which they had run, and credited the $4.05 upon account thereof, which left the sum of $1.20 due the defendants. The learned judge who tried the cause in the court below recognized the fact that this cancelation of the policies seemed to close the entire transaction, but he left to the jury this question, “ Is there a contract between these parties, still existing after the policies were canceled by [131] order of the plaintiff in this ease, that the Union Insuring Company were to procure insurance upon that personal property to the amount of $300.” It was here that the learned judge fell into error, the defendants had on November 11, 1897 notified the plaintiff that the policy would not be written, and there was no evidence from which a jury should have been permitted to find that the defendants had subsequently agreed to procure the insurance. The agreement of the defendants was not a contract of insurance, had it been it would have been void; it only bound them to exercise diligence and good faith in their efforts to procure the insurance: Weed v. Cuming, 12 Pa. Superior Ct. 412 ; Arrott v. Walker, 118 Pa. 249. When they notified the plaintiff that her property was already covered and that no new policy would be written her right of action, if it ever arose, was complete. The judgment is reversed.