Bouton v. American Mutual Life Insurance

Storrs, C. J. In regard to the first point made by the defendants, as to the effect of the non-payment by the insured of the premium in advance, as required by the policy in this case, although the conclusion to which we have come, on the question as to the evidence in regard to the powers of the agent of the defendants, renders a decision of it unnecessary, yet, as another trial of the case must be had, we have considered that point, and are of the opinion that, as the policy provides that, in case the annual premium required by it should not be paid in advance as therein mentioned, the defendants should not be liable for the payment of the sum insured or any part thereof, and the policy should cease and determine, it was optional with the defendants, on such nonpayment, to consider and treat the policy as being at an end to all intents and purposes, in which case they would be absolved from all claim liability thereon ; but, that as that provision was inecrti •" -.. 'the solo bbueut-of the defendants, it was only^oidable ■ i>- election, and that it was tiiéte-competent for them to waive a strict compliance with .•fi the time stipulated for the payment of such premium; 'oat in case of such waiver, the policy would be revived , ontinue obligatory on the defendants on its original and further, that the reception by them, or their auagent of the premium for that purpose, after that — 551 — time, would have the effect of reviving and continuing the contract evidenced by the policy as though it had been strictly complied with by the insured. The authorities in support of this opinion are so numerous, uniform and explicit, and the reasons for it are so fully and satisfactorily given in them, that we deem it sufficient only to refer to them. Wing v. Harvey, 27 Eng. L. & Eq. R., 140. Buckbee v. U. S. Annu. Ins. & Trust Co.. 18 Barb., 541. Sheldon v. Conn. Mut. Life Ins. Co., 25 Conn., 207. Angel on Ins., § 213, and note, § 343. The next question is, whether it was proved on the trial that Webb was authorized by the defendants, as their agent, thus to waive the non-payment in advance of the premium as required by the terms of the policy. The first premium due on it was paid in advance to Webb, up to Jan. 1, 1852, according to its terms, and it was, at the time of such payment by him countersigned and delivered to the insured. The question before us respects the next premium payable in advance on that day, in regard to which, it was, as claimed by the plaintiff, paid by the insured to Webb and received by him for the purpose of reviving and continuing the policy, but confessedly after that day, and without any other authority in Webb excepting that which is contained in the policy itself. We are therefore to look to that instrument alone for the evidence of his authority to receive that premium. And the only expression in it, from which that authority is claimed to appear, is the testimonium clause at the end, which provides that the policy “ shall not be binding until countersigned by W. W. Webb, agent, and delivered, and the advance premium paid.” The question before us, therefore, depends on the true construction of that clause, or rather of the word “agent” contained in it, taken however, in connexion with any other part of the instrument which may shed any light upon its meaning. In this case there is nothing in any other part of it which aids us in ascertaining the extent of the authority conferred upon Webb as the agent of the defendants; so that in determining its extent, we are left entirely to the clause which has been — 552 — mentioned. The policy whether it is to be considered as conferring or only recognizing an authority to be exercised by Webb, evinces that he has a power to act for the defendants at least for some purposes, because that is necessarily implied in the term by which he is expressly designated as agent. If, to suppose a case so singular, it had stopped there and nothing in the instrument had been connected with that term, or referred to by it, to show to what it related, it would have been wholly indefinite and uncertain, not only as to the subject, but also as to the extent of his authority. It would have indicated merely the existence of that relation between the defendants and Webb which constitutes what is termed an agency, but which would be consistent with the existence of any one kind or any particular extent of power conferred by that relation, as well as with another. It would have been satisfied by considering him as an agent for any purpose and with any power whatever; and it is difficult to see on what ground any particular effect, or at most, more than the most limited one, could properly be given to it. We can not accede to the claim of the plaintiff, that the broadest signification ought to be put upon it, because the term agent is used without any express qualification. To give it such an unlimited effect would extend its meaning beyond what it could reasonably be supposed was intended by the parties; and we are aware of no rule which requires such a construction. The rule of construing language in pleadings and contracts most strongly against the party using it, which however prevails only in cases of necessity and where all other means of construction fail, does not apply to an instrument by which an authority is delegated to an ordinary agent; it is not a contract, nor has it properly speaking any parties; and it is at least questionable whether even in pleadings, where the term in question should be used, it would be construed to imply an authority as broad as the plaintiff here claims from it. There is not here any doubt or obscurity as to the meaning of the term used, but the difficulty arises from the circumstance that it of itself expresses merely a particular relation between the defendants and — 553 — Webb generally, and which requires something more to be expressed, or to be inferred from extrinsic proof, in order to show the specific character and extent of that relation and to what acts in particular it was intended to apply. There is nothing in the character of this policy or in the language of the clause containing the term in question, which, in our opinion, requires that it should be interpreted by any artificial or technical rule of construction, or otherwise than according to its natural import. But this idea need not be pursued; for in this case the word we are considering is not left' unconnected with any thing in the instrument from which the nature or scope of the agent’s authority can be ascertained. The concluding expression in it, on which the question before us arises, is that the “ contract” expressed in the policy “ shall not be binding until countersigned by W. W. Webb agent, and delivered and the advance premium paid.” From this it is clear that the policy was not intended to take effect by a delivery to the insured by the defendants immediately on its execution by the latter, or by any other delivery than one which should be made through an agent; that it was intended that the delivery of it by such agent was not to make the contract binding until it should be countersigned by him and the premium mentioned in it should be paid in advance ; that is, before the commencement of the period for which the insurance under it should be effected; and that Webb was the particular and only person or agent to whom the premium should be paid, and by whom the policy should be countersigned and delivered on behalf of the defendants. The direct and immediate object of this clause was to prescribe the mode in which the policy should take effect as a contract between the parties. That mode is particularly described, and required the interposition of an agent, and Webb was designated as that agent. The clause states exactly what is to be done by him, or, in other words, the authority which the defendants have conferred on him. The word “ agent,” added to his name, considered as we are now doing, with reference only to the said clause, imports no more than that he was the agent of the — 554 — defendants to do and co-operate in the things which it was therein provided should be done for the purpose therein mentioned, of making the contract binding. One of those things was the payment by the insured of the premium in advance to, and consequently its reception by him. This being done, together with the countersigning and delivery of the policy, the contract became, but could not otherwise become, consummated and complete. The question now is as to the extent'of the authority which was thus conferred on Webb in regard to the premiums provided for in the contract. We think that he was not empowered to receive any .premium which was not paid according to the requirements of the policy, that is, in advance. That instrument was his sole guide in regard to what he should do under it. The contract was to be made by the defendants, and not by him excepting in the capacity of their agent; he was not authorized to alter or vary it, or depart in any respect from it, or dispense with the fulfilment of its conditions by the insured, or discharge it, or revive it after it had by its terms ceased to be obligatory on his principal, by a waiver of a compliance with its provisions or otherwise. These must be done by the parties to the contract. He was only authorized to act in pursuance of it, and then so far only as it gave him authority. He could exercise only the power delegated to him, and no power is delegated to him to depart from the terms of the policy. It surely is not necessary to cite books to show that an agent, authorized only to execute a contract in behalf of one of its parties, has no power to vary it or dispense with its execution by the other, or that one authorized by a person to receive a payment of a sum of money from another on and pursuant to a conditional contract which requires such payment to be made at a specified time, is thereby empowered to authorize or waive a breach of such condition. If it be admitted that by the clause in question, Webb was authorized to receive not only the first premium which was required to be paid on the policy, but' also those which it provided might subsequently be paid upon it, which has not been denied by the defendants, the question before us may — 555 — be tested by inquiring whether, in respect to the first premium, the policy gave Webb any authority to bind the defendants by a delivery of the policy before the payment of such premium ; for as he had no greater power in regard to subsequent premiums than he had as to the first, it is quite clear that if hewas not authorized to postpone the payment of the first, he was not as to those accruing afterward. To this inquiry the policy furnishes a most explicit and decisive negative answer. It expressly says that the policy'shall not be binding “ until the advance premium is paid.” The whole authority of the agent being here expressed on the face of the instrument, there is no place for the doctrine which is applicable to cases where an agent with an ostensible general authority, is restricted by particular and special private instructions from his principal, and which has been adverted to by the plaintiff’s counsel. We are therefore of the opinion that although Webb might be, and we are strongly inclined to think that he was, authorized by virtue of his agency, as indicated in the policy, to receive in advance the payment of premiums which should by its terms be payable subsequent to its execution and delivery, he was not thereby authorized to receive such premiums after the day on which it was provided by the policy, that they should be so paid in advance; and therefore that on this point a new trial should be granted. Our opinion is confined to the question as to the character and extent of Webb’s authority as deducible from the terms of the policy itself; leaving the plaintiff at liberty to prove expressly by extrinsic evidence, an authority to receive premiums after the time when they were made payable by the terms of the contract, so as to revive it, or facts from which such an authority should be implied. On the remaining question, which respects the effect of the agreement claimed to have been entered into between Webb and the insured, as to the mode in which the premium should be paid, we think that, on the assumption of the court below as to the extent of Webb’s authority, the charge — 556 — on that point is sustained by our decision in Sheldon v. Conn. Mutual Life Ins. Co., 25 Conn., 207. In this opinion the other judges, Hinman and Ellsworth, concurred. New trial advised.