Horn v. Dorchester Mutual Fire Insurance

Rugg, J. The first question is whether Crosier was the agent of the plaintiff in what he did as to the cancellation of the policies. There was no general or previous agency, nor express authority from the plaintiff to him to cancel upon condition; hence Faulkner v. Manchester Assurance Co. 171 Mass. 349, is distinguishable. If the agency exists, it must be implied from these facts: The plaintiff was solicited to let the insurance policies in issue be written by Crosier; the plaintiff assented, and the amount to be placed was decided upon between the plaintiff and the representative of a bank, which was loaning the former money upon the security of a mortgage on the property insured, and to which as mortgagee the policies were made payable. Crosier did not write the insurance in any companies represented by himself, but obtained the policies from one Miller, who was the agent of the defendants, and from him received a commission; this occurred about January 15,1906, when the policies were dated; later the plaintiff paid the mortgage, received the policies into his own possession, and retained them until after the fires about eight months later; the policies covered three buildings, one of which was burned on April 3, another on April 6, and the third on April 16, 1907; on Friday, April 12, 1907, after the first two fires, Miller wrote and dated the receipt of return premium and cancellation of each policy, and sent [538] them to Crosier, together with a check for the return premium and dividend, requesting him to get them signed by the plaintiff; Crosier on Sunday, April 14, went to the home of the plaintiff, and said to him, in substance, “ the companies have cancelled the policies ; you will have to sign these notices; I will pay you the money ”; the plaintiff, in ignorance of the provision of the policies, requiring a ten days' notice of the cancellation of the policies, signed the receipts and cancellations, and received payment partly in check and partly in money for the return premiums and dividends; a few days later the plaintiff, learning of the ten day cancellation term of the insurance contract, returned the money to Crosier, who did not want to receive it, but the plaintiff left it, and Crosier sought and received from the defendant’s agent, Miller, instructions as to its disposition, which he followed. It is plain, from this narration, that Crosier in respect of the cancellations was acting solely as the agent of the defendants. There was no general agency respecting fire insurance matters from the plaintiff to him. No such inference can be drawn from authority conferred as to a single insurance of property. The solicitation from and in behalf of Crosier was merely to write the particular insurance. All that the plaintiff did was to accede to this request. His act carried no power as to the policies after they were procured. See Green v. Star Ins. Co. 190 Mass. 586, 596. The conduct of Crosier touching the cancellations shows that he was not acting as the representative of the plaintiff but of the defendants. He was instigated, not by the plaintiff, but by the authorized agent of the defendants. He was by this agent furnished in advance with the necessary money and documents, which, if properly executed, would guard their interests and deprive the plaintiff of all protection. It was wholly against the interest of the plaintiff to have the policies cancelled, and it was the obvious duty of Crosier, if acting as his agent and in his interest, to insist upon compliance with the term of the policy as to the ten days’ notice, and not voluntarily to waive it. But he stated to the plaintiff the fact that the companies had can-celled the policies, without adding that, unless he signed the paper presented, the companies would be obliged to give him [539] a written notice of the cancellations, and that any loss occurring within ten days after the notice would not be affected. He asked the plaintiff to sign the papers, and take the money. This is not the action of an agent of the insured, but of the other party to the contract. There is no circumstance upon which agency for the plaintiff can be predicated. The procuring from the plaintiff of the receipts and agreements for cancellation of the policies having been the act of the defendants, it remains to inquire what is their effect as a defense. Although dated on a secular day, they were in fact signed and delivered by the plaintiff and the money paid to him by the agent of the defendants on the Lord’s day. The doing of this business was a penal offense. St. 1904, c. 460, § 2. It has been often decided to be against the policy of the law for courts to lend their aid in the enforcement of contracts made in violation of this statute. This is equally true, whether the effort is to sue directly upon such a contract or to interpose it as a defense to an otherwise well grounded cause of action. Parties are left by the law precisely where their own acts, in making such a contract, leave them. Although performance on Sunday of a valid contract will not be treated as a nullity, it will not be given an independently affirmative effect beyond mere performance. Gordon v. Levine, 197 Mass. 263. Clapp v. Hale, 112 Mass. 368. Before the transaction on the Lord’s day herein pleaded, there were valid contracts of insurance between the plaintiff and the defendants. What the defendants sought to set up as a defense was not performance of their contracts by the payment of previously established and liquidated liability, but new contracts by which the original contracts were annulled. It would be directly enforcing a contract made on the Lord’s day to permit such a defense to prevail. The alleged cancellations of the policies were therefore void. Moseley v. Hatch, 108 Mass. 517. Stevens v. Wood, 127 Mass. 123. Exceptions sustained.