Linder v. Fidelity & Casualty Co.

G-ileillan, C. J. The facts in the case do not admit of the questions of law raised by the briefs. Treating the contract between Catón and plaintiff as, between them, an equitable assignment of a part of the claim, still, as found by the court below, the company paid the claim to its creditor, the person to whom it had contracted to pay, without having assented to, or having any notice or knowledge of, such assignment; and that excludes any claim by plaintiff against it. The court was not only justified in so finding the facts, but, on the evidence, it could not have found to the contrary. When the contract was made, Comstock, the company’s local soliciting agent, not only refused to assume to bind the company, but declared that he had no authority to do so. The evidence was uncontroverted that in fact he had no authority in the matter of adjusting, settling, or paying losses, or any authority but to solicit insurance, countersign and deliver policies, and collect premiums, and, when the draft payable to Catón, the beneficiary in the policy, was .sent to him, to deliver it to Catón, and take his receipt. Such an arrangement as this contract contemplated was a matter beyond the scope of bis authority, anti notice of it to him was not notice to the company. [307] As to Comstock, if he agreed to see the contract between Catón and plaintiff carried out, it was by parol, and, as it was, in effect, to answer for the default of the former, it was within the statute of frauds. Judgment affirmed. (Opinion published 54 N. W. Rep.' 95.)