Commonwealth Mutual Fire Insurance v. William Knabe & Co. Manufacturing Co.

Morton, J. There can be no question that Blake and Company were the agents of the plaintiff, and that Glover and Company were the agents of the defendant. One question is whether Tate and Cornwall were the agents of the plaintiff or of the defendant. If they were the agents of the defendant, or were not the agents of the plaintiff, then, subject to certain considerations in regard to the terms of the policies which will be referred to later, the policies are Massachusetts contracts. If they were the agents of the plaintiff, it might still be a question whether the policies should not be regarded as Massachusetts contracts. If the policies should be regarded as New York contracts, then the question would arise whether, the insurance being on property situated in Maryland, they are rendered invalid by the laws of New York. If the policies should be regarded as Maryland contracts, the plaintiff does not contend that it is entitled to recover. There is nothing to show that Tate and Cornwall were the authorized agents of the plaintiff. They are described as insurance brokers. They were requested by Glover and Company to obtain insurance on the property described in the policies. Glover and Company also requested them to obtain the insurance in the plaintiff company. In forwarding the application, they clearly acted for Glover and Company, who in turn acted for the defendant. They did not solicit the insurance for the plaintiff from Glover and Company, but Glover and Company requested them to procure insurance in the plaintiff company for the defendant. It seems to us plain that Tate and Cornwall must be regarded as the agents of the defendant. The fact that there were open accounts between Tate and Cornwall and [270] Blake and Company, and that the premiums were charged to the former, who were paid by the latter out of the commissions which they were allowed by the plaintiff, has no tendency to show that they were its agents, nor has the fact thaffthe checks received by Tate and Cornwall from Glover and Company, and sent by them to Blake and Company, were payable to the plaintiffs order, any such tendency. The plaintiff is a Massachusetts company. The offers contained in the applications were received and accepted by it in Boston. The policies were made and signed there. The contracts contained in the policies were. to be performed there. When the policies were mailed at Boston to the defendant’s agents at New York, if not before, the contracts were complete, and must be regarded, we think, as Massachusetts contracts. Brauer v. Shaw, 168 Mass. 198. Seamans v. Knapp-Stout Co. 89 Wis. 171. Western v. Grenesee Ins. Co. 2 Kernan, 258. Bailey v. Hope Ins. Co. 56 Maine, 474. Hartford Ins. Co. v. Lasher Stocking Co. 66 Vt. 439. This view renders it unnecessary to consider whether the policies would have been invalid as New York contracts, or what the effect would have been if Tate and Cornwall had been the agents of the plaintiff. The defendant contends that the policies contained terms and conditions not included in the applications, and that therefore they did not become binding until accepted by the defendant or its agents, which could not have been till they were received in New York. The applications not only did not contain the terms and conditions which the defendant says they did not, but, so far as appears, they did not contain many other terms and conditions which are in the policies. Ordinarily, it is not expected that an application for insurance will contain all of the terms and conditions which are included in the policy when it is issued. Certain particulars are named, others are not. The application is for such insurance on such terms and conditions as, in view of the particulars submitted, the company sells. It is to be presumed that, as in other cases, the purchaser has made himself acquainted with what he is purchasing. On the delivery of the policy therefore, the contract becomes complete without any further assent on the part of the insured. Possibly, if the policy contains any extraordinary provisions such as are not generally or often found [271] in policies, the insured on receiving it might have a right to rescind. But that was not the case here. Moreover the plaintiff is a mutual company. The provision in the policy, that the insured should in addition to the premium pay all such sums as might be assessed by the directors, is a usual provision in mutual policies. But whether so or not, the defendant by becoming a member of a mutual company became bound to pay a proportional share of its liabilities. The plaintiff could waive the payment of the premium in cash upon delivery of the policy, and in such case the policy would take effect on delivery, and would stand as if there were no provision in it in regard to the payment of the premium in cash upon delivery. The provision contained in one of the policies in regard to co-insurance or average is not shown to have been an unusual or extraordinary provision, and it appears that the brokers who were acting for the defendant knew that it was frequently inserted in policies, and knew when the applications were sent what the uniform provisions of the policies issued by the plaintiff were, and for aught that appears made no objection. We think that, on the whole case, the judgment of the Superior Court was right, and should be affirmed. So ordered.