Leader Realty Co. v. Markham

CAULFIELD, J. (after stating the facts). — I. Defendants’ chief complaint on this appeal concerns the action of the trial court in giving plaintiff’s first instruction. They first assert that that instruction contains an erroneous declaration of law in that it permitted the jury to find that “defendants dealt with said Dana C. Sycks as a broker and issued said policies upon the credit of said Dana C. Sycks, and not upon the credit of the Leader Realty Company.” Defendants’ reasoning as to this proceeds about as follows: A “ broker ’ ’ is prima facie the agent of the insured. If the defendants “dealt with said Dana C. Sycks as a broker,” it necessarily meant that they dealt with him as the agent of the insured “and not as an independent contractor.” If, in response to this reasoning of the defendants, we accept as correct their assumption that to deal with Sycks as a broker was to deal with him as the plaintiff’s agent, still it does not follow, as defendants assume, that therefore the defendants may not have “issued said policies upon the credit of said Dana C. Sycks, and not upon the credit of the Leader Realty Company,” as the instruction also hypothesizes. If one dealing with an agent, knowing the principal, sees fit to give credit to the agent exclusively, he must look to the agent alone for payment and cannot afterwards resort to the principal. [Mechem on Agency, sec. 558.] But we consider, the argument as to the effect of using the phrase “dealt with said Dana C. Sycks as a broker,” to be without .•substance, 'a mere play upon words. It is clear from the whole context that the true hypothesis submitted :is that each of the parties dealt with Sycks as an Independent contractor, whatever he was called, the plaintiff getting the policies from him, and paying him for them, and the defendants delivering them to him [325] on Ms credit and not on the credit of the plaintiff. The instruction in effect tells the jury that if the defendants accepted the individual credit of the broker as a payment of the premiums, the defendants could not cancel the policy without repaying the premium to the plaintiff, the plaintiff having paid them to the broker, and this, as we understand it, is the law. [Bennett v. Maryland Fire Ins. Co., 14 Blatchf. 422; White v. Conn. Ins. Co., 120 Mass. 330.] Defendants next suggest that as the petition contains no allegation that the defendants dealt with Syeks as an independent contractor or issued the policies on his individual credit, this instruction submitted an issue not raised by the pleadings. In this respect the substance of the issue was whether the plaintiff had paid the premiums. The material fact set forth in the petition is that the premiums were paid, not how they were paid — whether by cash direct to the defendants or to its agent, or by the defendants accepting the individual credit of the broker as payment, the plaintiff having paid him. The petition was so drawn that it might well have been made more definite and certain in its averments as to payment of the premiums, but no objection was made to it, and it is good after verdict. We hold that the hypothesis submitted by this instruction was within the issue of payment raised by the pleading. We also hold that there was evidence tending to support it. There was evidence to the effect that the defendants charged the premiums to the broker’s personal account and from time to time received his personal checks to the credit of this account. Also that though most of these premiums were not paid to the defendants for- more than a year the defendants made no claim or demand to plaintiff on account thereof. It is true that the weight of the evidence seems to favor the idea that Sycks was the agent of the defendants in collecting the premiums [326] from the plaintiff; bnt there was sufficient evidence favoring the theory that the defendants extended the ■credit to him alone to justify submitting that theory to the jury. Nor are we inclined to agree with the defendants’ counsel that this instruction, which submits the question whether defendants dealt with Sycks as a broker and extended credit to him exclusively, is in conflict with the second instruction, which submits the question whether Sycks collected from the plaintiff as the agent of defendants. If the two instructions had made defendants’ liability depend upon a finding of both hypotheses they might be held confusing and contradictory because perhaps the defendants could not have dealt with Sycks as a broker extending credit to him alone as stated in the first instruction, and at the same time had him as their agent to collect from the plaintiff as stated in the second instruction, but these instructions are not subject to that criticism. One permits the defendants to be held liable if the first state of facts is found, the other recognizes such liability if the second state of facts is found. Each correctly states the law as applied to the particular facts hypothesized and neither contradicts the other. The jury could not possibly have been confused or misled by these instructions. [See, as having some hearing on this question, Dawson v. Quillen, 61 Mo. App. 672, 678; Barton v. City of Odessa, 109 Mo. App. 76, 82 S. W. 1119.] II. "We agree with the Springfield Court of Appeals in its holding, expressed and discussed in its opinion above mentioned, that the instruction offered by the defendant was properly refused; for though Sycks as agent of the defendants to receive payment of the premiums, if he was such, had no implied authority to accept notes or checks by way of payment, still if the checks and notes which he accepted [327] were paid, as they were in this case, it was a good payment. [Mechera on Agency, Sec. 381.] III. As to the alleged error in the admission of testimony, we adopt that portion of the aforesaid opinion of the Springfield Court of Appeals which reads as follows: ‘‘The error assigned in the admission of testimony is that witness Bowman was allowed to testify as to certain statements made by one of the defendants. The ground of this contention is that the statements were made in the course of a conversation in which the parties were attempting to effect a compromise. It is well settled that the statements of a party made in an effort to secure a compromise of a disputed claim cannot be used as evidence against him in a trial subsequent thereto, but upon reading the record in this case we find that the testimony offered does not come within this rule for the reason that the witness stated at the time of giving the testimony that in the first conversation between them in which the statements were made nothing was said about a compromise and, therefore, no error was committed in admitting this testimony.” IY. We may add that we have not considered the circumstance that the plaintiff has sued the agents of the insurers instead of suing the insurers themselves, because from the inception of the case the parties have proceeded as if that were proper, and as if the defendants, having had the dealings the record discloses and having done the wrongful cancelling, were the responsible parties. We feel justified in dealing with the case in that respect as they have dealt with it, and have given this feature no consideration and express no opinion thereon. The judgment is affirmed. Rey olds, P. J., and Nortoni, J., concur.