Fish v. Seeberger

Baker, J.: Counsel for appellant contend there was no contract for the insurance .of the butter, and that in the absence of such a contract it was not the duty of appellant to insure the same, and therefore plaintiff below was not entitled to recover. Also, that appellee repudiated the insurance, and for that reason is entitled to derive no benefit from it. It is a sufficient answer to the first position to say that appellant did procure insurance on appellee’s property in his hands as agent, and whether there was a contract requiring him to do so, or whether it was his duty to do so or not, he cannot be heard to say that appellee shall not have the money received from that insurance. This proposition we consider too plain to call for argument or the citation of authorities in support of it. As a matter of fact, the insurance was not repudiated. He was charged with and paid the premiums on the same, and though he may have done so reluctantly, he lost no right thereby. It is insisted that the trial court erred in not permitting appellant to introduce evidence tending to show that the butter belonging to appellee was not, in fact, damaged. The competency of this evidence is based upon the assumption that appellant had other butter in store covered by the insurance than that belonging to appellee, and that all the damage done was to such other butter. It is not, however, pretended that the money collected from the insurance companies was upon any such theory. The claim there made and allowed was, that all the butter stored in the warehouse — 1375 packages — was damaged. Having collected the insurance on appellee’s property, it does not lie in his mouth to say the property was not damaged. If his excluded testimony had been accompanied with an offer of proof that the insurance money received was for butter other than that belonging to appellee, a different case would have been presented. The material question was, did appellant collect insurance on appellee’s property. It is further objected, that the trial court erred in refusing certain instructions asked by the defendant. The argument in support of this point proceeds upon the theory that appellant could insure the property of appellee, collect the premiums from him for the insurance, submit to the insurance companies a claim for damages to such property and collect damages for the loss, and still refuse to account for the money collected, because there was no contract between the parties that the property should be insured, although it had been consigned to him to sell, and was in his possession for that purpose when insured, and can also setup a defense that the property was not injured. As we have already seen, this theory is wholly untenable. There was no error in the refusal of instructions. The third instruction given on behalf of plaintiff was to the effect that he was entitled to recover from the defendant interest on money collected by him from the insurance companies on account of damages to plaintiff’s property from the time he demanded payment thereof, and it is contended this was error. The theory of plaintiff’s case is, that the defendant had received money belonging to him, and wrongfully refused and neglected to pay over the same, even after demand. If, as has been found by the jury and Appellate Court, that theory is sustained by the evidence, this instruction is clearly right, and even more favorable to the defendant than he had a right to ask. Chapman v. Burt, 77 Ill. 337. Appellee’s fourth instruction, to which counsel object, lays down the principle that it is the duty of ah agent or commission merchant to render full accounts of money received for and on account of bis principal, and that if appellant collected and received from insurance companies moneys for loss or damage to property of appellee in his hands as agent, and after the receipt of such moneys rendered an account to appellee of moneys received by him from sale of goods, but neglected or refused to render an account of the moneys so received from such insurance companies, for the purpose and with the intent to wrong and defraud appellee, then he thereby forfeited all right to commissions earned in the sale of the property. The rule is well settled that an agent is only entitled to commissions upon a faithful performance of all the duties of his agency. One of these duties is to render to his principal statements of all money received and profits made through his agency. (Brannan v. Strauss, 75 Ill. 234; Story on Agency, sec. 331.) The evidence tends to show that appellant intentionally concealed not only the fact that he had collected insurance money for and on account of damages to his principal’s property in his hands, but also concealed the fact that it had' been subject to damage by fire. In view of this evidence the instruction was proper, and we think correctly stated the law. We think the Appellate Court properly disposed of this case, and its judgment will be affirmed. Judgment affirmed.