Faulkner v. Manchester Fire Assurance Co.

Morton, J. We think that the plaintiffs’ right to recover was not affected by the mistake in the proof of loss in regard to the number of the building. The description of the building corresponded in other respects with that contained in the policy, and there is nothing to show that the defendant was misled or prejudiced by the error. It received the proof without objecting then, or during the subsequent negotiations, to the mistake in the number, and the jury might have found that it had waived any objection to the proof which it might have had on that ground. Blake v. Exchange Ins. Co. 12 Gray, 265. Graves v. Washington Ins. Co. 12 Allen, 391. Underhill v. Agawam Ins. Co. 6 Cush. 440. We do not find it necessary to consider whether there was evidence tending to show that the defendant waived the provision in the policy in regard to arbitration in case the parties were unable to agree as to the amount of loss, since we are of opinion that the policy was duly cancelled before the fire occurred. It is admitted that Madden was the agent of the defendant, and that as such agent he had authority to issue, deliver, and cancel the policy in suit; but the plaintiffs contend that, in procuring the policy and delivering it to him for cancellation, Miss Wentworth acted as his agent, and not as their agent. It was [352] uncontroverted that the plaintiffs applied to one Breed to secure insurance on the building, and that he in turn applied to Madden, who issued the policy. After the policy was issued and delivered, the defendant company requested Madden to cancel it and promptly return it to the main office. Thereupon Madden •went to Breed’s office and told Miss Wentworth, who was the clerk in charge, that he was instructed to cancel the policy, and asked her to get it and bring it to him for cancellation, which she did. Breed had procured other insurance for the plaintiffs. It is evident, we think, that Miss Wentworth must be regarded in Breed’s absence as representing him, and that in applying at Breed’s office for the policy Madden treated Breed as the party who had represented and acted for the plaintiffs in procuring the insurance, and as the proper person through whom to make application for its return for cancellation. It would only be by a fiction of law, therefore, that Breed or his clerk could be regarded as Madden’s agent, or as representing anybody except the plaintiffs in delivering up the policy for cancellation. And we see nothing that requires such a fiction to be imported into the case, or which will justify any other conclusion than that Miss Wentworth was the agent of the plaintiffs. That being so, the plaintiffs’ instructions to her, which were not disclosed to Madden, could not affect the validity of the cancellation. Parker & Young Manuf. Co. v. Exchange Ins. Co. 166 Mass. 484. Judgment on the verdict.