Leonard v. Washburn

Colt, J. The evidence fails to support the allegation of fraud on the part of the defendant in obtaining from the plaintiff the payment of the first premium upon the policy of insurance issued by the company for which he was agent. The defendant, in consideration of the acceptance of a draft drawn on the plaintiff for the premium, agreed as agent to obtain a policy on the plaintiff’s life in the Mutual Life Insurance Company of New York. It does not appear that any agreement or representation was made in regard to the particular form or conditions of the policy. The usual application was made in writing, and signed by the plaintiff; and the undertaking of the defendant was performed by obtaining a policy in the usual form and with [254] the usual conditions therein for the amount named, and delivering the same to the plaintiff. There was no misrepresentation or concealment on his part. If there was a failure to comply with the provisions of Gen. Sts. c. 58, such failure did not affect the value of the policy issued to the plaintiff. The default of the defendant in this respect, and his neglect to notify the plaintiff of it, if he wras under any obligation to do so, were manifestly with no fraudulent design towards the plaintiff. By the provisions of the statute, no premium or assessment made on any contract of insurance with a citizen of the state shall be recovered by a foreign insurance company which has not complied with the requirements relating to the appointment of agents and returns to the proper department. The contract of insurance is, however, declared to be valid ; and the statute in none of its provisions contemplates or authorizes the recovery back from the agent of a premium actually paid for a valid policy. Nor has there been such a failure of consideration in this case as would entitle the plaintiff to recover. The policy delivered was a valid policy, and continued so, as long as the plaintiff observed the conditions thereof; so that his life was or might have been insured thereby from the first of January to the first of April following, when it was forfeited by nonpayment of premium then due. Taylor v. Lowell, 3 Mass. 342. The fact that the defendant exceeded his authority from the company,in receiving and negotiating the draft, or receiving a premium without giving a receipt therefor signed by the president, is a matter to which the plaintiff cannot object, so long as the company recognized and approved his acts by issuing the policy. The case of Mulrey v. Shawmut Insurance Co. 4 Allen, 116, cited by the plaintiff, was the case of a policy issued by a mutual company, incorporated into which was an express stipulation rendering it invalid in case the cash premium was not actually paid at the office of the company. Here, at most, was : nly a failure of the defendant to comply with the general instructions of the company, which the case shows to have been waived by issuing the policy. Exceptions overruled.