Rahr v. Manchester Fire Assurance Co.

WiNsnow, J. The only questions seriously litigated in the • case were: (1) Whether Sterling was in fact the defendant’s agent. (2) If not, whether he had been held out as • such, so that the defendant would be bound by his acts because he was apparently such agent. The first question was answered by the court in the negative, and the question now is whether the court was justified in so doing. From the foregoing statement of facts we think it very clear that the court was right. Examination of the evidence fails to show that either French or Wither bee ever in fact constituted Sterling the agent of the-company. Sterling himself does not claim it. He is forced to admit, substantially, that he was never made an agent, but that he thought he would be such agent. His whole • evidence conclusively shows that he issued the policies depending on a probable ratification by the company, and on his probable early appointment as agent, rather than upon the fact that he was in fact agent. In fact the contention that Sterling was in fact an agent of the company was-abandoned by the plaintiffs on the trial. This appears from a conversation between plaintiffs’ counsel and the court during the trial. The defendant was offering testimony as to-a conversation between Sterling and French after the fire,. to which the plaintiffs’ counsel objected as immaterial.. Thereupon the court said, “If you concede that, as between, the company and Mr. Sterling, he was not their agent, why then it is not material; if you don’t, it is material.” To361 this plaintiffs’ counsel replied: “Well, I don’t know but I would concede that; probably will. It wouldn’t make any difference. Thai is not a question in the ease.” If this question was not a question in the case, it could only be because-the plaintiffs had abandoned their claim that he was in fact an agent. Furthermore, it appears that the court instructed the jury that it was not claimed by plaintiffs’ counsel, really, that Sterling had actual authority to issue the policy in suit.. To this instruction no exception was taken. Manifestly, the-plaintiffs had abandoned their contention of actual authority because there was no testimony to base it on, and the court was right in taking the question from the jury. As to the second question in the case, namely, that of apparent authority, it could not be contended on any testimony in the case that either Witherbee or French had ever authorized Sterling to obtain the blank policies and other-supplies, so the only question on this branch of the case was whether the company knew of Sterling’s possession of these supplies at the time of the issuance of plaintiffs’ policy, or was negligently ignorant of that fact. These questions were-fairly submitted to the jury, and answered in the negative. There was no other ground upon which apparent authority could be claimed. A request to collect the former agent’s-balance, or to make up his accounts from the books, or to mail a canceled policy, would furnish no ground for a claim of apparent authority to issue policies. Thus it is clear that when the first three questions of the-special verdict were answered all the material questions in the case were disposed of; and when those questions were-all answered in the negative there was no ground left on which the plaintiffs could recover. The remaining questions seem to have been mere surplusage, and there was no-evidence left in the .case upon which affirmative answers to them could rest. The court was right in striking them out. By the Gourt.— Judgment affirmed.