In such case, the assured may maintain an action against such company for his loss. But it seems that in such case when a policy is

mium.' On the 13th of same month, the plaintiff made application, by letter, to Gunckel, for further insurance, on the same description of property, to the amount of $10,000; and at same time informed him that he (plaintiff) had obtained other insurance on same property, from the agency of Landis & Son, to the amount of $13,000, including $7,000 applied for on that day. The amount of insurance thus notified to Gunckel included also the policy for $2,000, from the Enterprise Company, which had been obtained before the execution of the instrument sued on. On the next day, December 14, Gunckel indorsed on the policies, then in his hands, from the German, Cooper and Central Companies, the amount of insurance in other companies, which was thus notified to him. Neither the German, the Cooper, nor the Central Company assented to or was notified of any insurance on the property effected by plaintiff after the date of their respective policies. On the 18th day of same month, the property insured was destroyed by fire; and on the next day, Gunckel, having full knowledge of the loss, delivered the German, Cooper and Central policies to the plaintiff, who, in consideration thereof, and in the belief that they were valid and binding policies upon the companies by whom they had been issued, surrendered the instrument sued on to Gunckel to be canceled, and at the same time executed to Gunckel his note for the amount of the insurance premium as per agreement. This note was after ward paid, and the payment accounted for by Gunckel. The loss was notified to the companies interested, including the German, Cooper and Central, and proof thereof duly made. The German, Cooper and Central Companies repudiated the plaintiff's claim on the ground that their policies were avoided by reason of subsequent insurance, without notice to them, and without their consent. Proof of loss was afterward, and about three months after the fire, made as against the defendant. McILVAINE. J., said: 1. The court instructed the jury, among other things, as follows: In regard to the issues made by the first and seventh defenses, if it was proved that the contract upon which suit was brought was signed by J. R. Young, as secretary of the defendant, and if Charles F. Gunckel was agent of the defendant, the contract would have the effect of binding the company, though not signed by the president of the company.' The defenses referred to were based on the provisions of defendant's charter, the ninth section of which provides as follows (49 Ohio L. 191): That all policies or contracts of insurance, that may be made or entered into by said company, may be made either under or without the seal thereof, and shall be subscribed by the president, or by such other officer as may be designated for that purpose by the board of directors, and attested by the secretary; and being so subscribed and attested, shall be obligatory upon said company according to the tenor, intent and meaning of this act, and of such policies or contracts.' This charge assumed, as was averred in the answer and not denied in the reply, that the contract sued on was not subscribed by the president, and that the secretary had not been designated by the board of directors as an officer for the purpose of subscribing policies or contracts of insurance,' as required by the ninth section. It must be admitted that the charter gave to the company all the powers that it possessed. It undoubtedly gave the power to make contracts of insurance, and the ninth section prescribed a form for the preservation of the evidence of its contracts, which is made obligatory on the company. If this form constitutes the only mode by which the company can obligate itself, of course any other mode would no more create a binding contract of insurance than if the corporation had never existed. The question therefore arises, is the form thus prescribed the only one in which the defendant can enter into a binding contract of insurance? It will be observed that the ninth section does not, in totidem verbis, confer upon the company the power to make contracts of insurance. If there were no express grant of such power to be found elsewhere in the charter, I admit that it would be implied from the provisions of this section; and in that case, the form therein prescribed would be exclusive. But if the grant of power to contract be found elsewhere in the charter, then our inquiry will be confined to the question, whether the form prescribed in the ninth section was intended as a limitation upon the power to contract, or merely as prescribing the manner of executing its policies. Insur

obtained without the knowledge of the assured, he may ratify the act of the person procuring it, even after a loss, and by such ratification, by

ance against fire was the sole object and purpose for which the defendant was incorporated. And the first section of its charter declares that it shall be capable generally to do and perform all things relative to the object of the association. This grant is certainly broad enough to confer the power to make contracts relative to insurance-power to negotiate and agree upon all the terms and conditions of the risk. Indeed, the very terms of the ninth section seem to imply that negotiations have ended in a complete contract before the execution of the formal instrument is required. Having found in the first section of the charter a grant of power to contract for insurance, we do not feel authorized to so construe the ninth section as to render null and of no effect all contracts made within the scope of the power there conferred, unless and until the president or other designated officer has subscribed the policy or contract of insurance.' On the other hand, we feel justified in holding that the terms, policies or contracts of insurance,' as here used, were intended to embrace the final instruments - such as are technically called policies of insurance, and do not include intermediary contracts of insurance, or contracts for policies. 2. The court further charged: That if the jury find that Gunckel was the agent of the defendant and that he made the alteration in the receipt or contract before it was delivered to Kelly, and that he did not do so by Kelly's procurement or assent or knowledge, then the alteration does not affect the liability of the defendant, but would be liable upon what remained of the contract.' We find no error in this instruction. The testimony shows that the secretary of the company was authorized to negotiate contracts for insurance, and also to appoint agents to solicit applications, etc. It also shows that the secretary had supplied Gunckel, as agent of the company, with these receipts or certificates, duly signed by himself, with authority to deliver them to applicants. We think the company, therefore, and not the applicant, should bear the consequences of Gunckel's erasure, although he was acting in violation of his duty to the company in making it. The company held Gunckel out to the world clothed with the apparent authority to bind it, by the delivery of such contracts; and that, too, with an erasure of part, such as was made in this instance. The plaintiff was justified in believing he was authorized to do so, for he had no means of knowing but that the paper was in the precise form in which it was when issued by the secretary. The appearance of authority extended as well to the document erased as to the document entire. 3. The court instructed the jury in relation to the condition in the contract concerning other insurance, as follows: That even if the jury should find that Kelly did not notify Gunckel of the insurance in the Enterprise Company of November 27th, 1867, on or before the 5th day of December, A.D. 1867, yet if he wrote to Gunckel on the 13th December, informing him of all the insurance, and Gunckel was the agent of the defendant, that such notice, if received before the loss, would be a good compliance upon the part of Kelly, with his obligation to give notice to the company of all other insurance, and that it would be sufficient as to the Enterprise insurance, and sufficient as to the $7,000 applied for on that day to Landis & Son, although such $7,000 was not issued until the 14th of December. That it was not necessary that any indorsement of either prior or subsequent insurance should be made upon the contract sued upon or recited in the same.' If, under the contract, the plaintiff was required to give notice of prior insurance, we doubt whether this instruction, in so far as it relates to that subject, could be sustained. The contract was for insurance according to the tenor and conditions of the printed policies' of the defendant. The conditions, in relation to other insurance contained in the printed policy, were as follows: Provided, further, that in case the assured shall have already any other insurance against loss by fire on the property hereby insured, not notified to this company, and mentioned in or indorsed upon this policy, or if the said assured, or his assigns, shall hereafter effect any insurance on the same property, and shall not, with all reasonable diligence, and before any loss by fire occurs, give notice thereof to this company, and have same indorsed on this policy, or otherwise acknowledged by them in writing, this policy shall cease and be of no effect.' A fair and reasonable construction of this contract would require notice of prior insurance to be given at the time of

relation, it becomes an operative contract of insurance from its date.' In an English case,' the plaintiff applied to an agent of the defend

making application for insurance. The object of notice is to enable the insurer to act prudently and intelligently in relation to the risk; yet, notwithstanding the reference to the condition in the printed policy, it was competent for the defendant to waive the condition, and we think it was waived, in so far as it related to the notice of prior insurance. The risk was taken upon an application which formed part of the contract. The interrogatory in the application for insurance, in relation to prior insurance, was not answered. The acceptance of the risk upon such an application is a waiver of any notice which a truthful answer to the interrogatory would have disclosed. 21 Ohio St. 176; 6 Gray, 85. As to notice of subsequent insurance, the charge of the court was right. Notice to Gunckel was notice to the defendant. We are not prepared to say that the notice to Gunckel would have been sufficient, if he had been the agent of the defendant merely for the purpose of soliciting applications and collecting premiums. Confessedly his authority in relation to this risk was much more extensive. He was, in fact, intrusted with the German, Cooper, Central policies, for the purpose of delivering them, in lieu of the defendant's own policy, and lifting the instrument sued on. Had he been intrusted with a policy of the defendant, for delivery, in perforinance of the contract, there can be no doubt that notice to him and indorsement by him of subsequent insurance thereon would have bound the company. He, in fact, indorsed the subsequent insurance upon the policies in his possession, and, in our opinion, he thereby assented, as the agent of the defendant, to all the subsequent insurance of which he had notice. We also think the court below was right in charging the jury that it was not necessary that any indorsement of either prior or subsequent insurance should be made upon the contract sued upon, or recited in the same.' The parties contemplated and contracted for a regular policy,' but the instrument sued on is not such policy. We understand, as did the court below, that the meaning of the parties was, that prior, as well as subsequent, insurance should be mentioned in or indorsed upon the regular policy, when or after it should be issued. Such recitals or indorsements would be a full compliance with the contract in this respect. No such policy having been issued, there was no failure to comply with this condition. The court also instructed the jury: That, if the company charged the amount of the premium to Gunckel, and Gunckel received the note of Kelly for the same, which was subsequently paid, that was a good and sufficient compliance with the contract upon Kelly's part, and the contract is binding, although said note was not given until after the fire.' The facts assumed in this charge, in connection with the fact admitted in the defendant's answer, viz., that Gunckel was the agent of the company, to solicit applications and to collect premiums, when insurance was effected,' amount to a waiver of the condition in their ‘printed policies;' 'that no insurance, whether original or continued, shall be considered as binding until the actual payment of the premium.' It is very doubtful whether such condition in the policy contracted for, attaches to a contract for intermediary insurance (10 Bos. (N. Y.) 83); but whether it does or not, the charging of the premium to such agent, and the agent's agreement to give time for its payment, and the subsequent payment to the company, constitutes a waiver of prepayment."

'In Excelsior Ins. Co. v. Royal Ins. Co., 55 N. Y. 543, Mrs. C was the owner of a mortgage interest in a certain building in the city of Rochester. Her husband as her agent applied to one McC., the agent of plaintiffs, for insurance on her mortgage interest. McC. issued two policies, for each plaintiff, for $3,500 each. When McC. made his daily reports to the home offices, the plaintiffs each directed him to cancel the policies. This McC. neglected to do, but applied to defendants' agents for re-insurance. Defendants' agents as they claim, and as plaintiffs deny, refused to re-insure, but they did issue a new policy to Mrs. C. for the amount of the other two. Mrs. C. did not authorize McC. to get the insurance with defendants. She held the plaintiffs' policy at that time. Shortly after this, the building was burned, and Mrs. C. then paid defendants' agents the premiums for their insurance, and they accepted it, as they claim, under protest and

'Mackie v. European Assurance Co., 21 L. T. (N. S.) 102.

ant, who was authorized to accept or reject risks for insurance, supposing that he was also agent for another company in which he had formerly been insured, but the agent sent him a receipt for the premium in the defendant company. The plaintiff thereupon wrote the agent that he did not want to change, if the old office was willing to take the insurance, as he knew nothing about the defendant company, and should require to be satisfied of its respectability and standing, before he consented to the change. Before anything more was done, and within five days thereafter, the premises were burned, and the plaintiff having brought an action upon the policy to recover the loss, the court held that it amounted to an acceptance of the policy, and made it a completed contract from the day of its date.

When company is not agreed on.

SEC. 25. The fact that the company or companies in which the risk is to be placed are not agreed upon, but is left for the agent himself to determine, does not affect the question, if the agent in fact selects the companies, and enters the risk in their books. Thus, in a New York

as plaintiffs claim voluntarily. The defendants' policy was not delivered to Mrs. C. until after the fire; it was held by McC., Mrs. C. assigned her interest in said policy to plaintiffs, and they brought this action to recover of defendants, first, on ground that defendant is a re-insurer, and second, as assignees of Mrs. C. There was a verdict for plaintiffs in court below for full amount of the policies. The court held that defendants cannot be held to be re-insurers, their policy does not purport on its face to be a contract of re-insurance. It is made in Mrs. C.'s name. The defendant was not informed that a re-insurance had been applied for. The application sent to the home office was for an ordinary policy. If defendant was chargeable with the knowledge of its agent not communicated to it, it cannot be void from the evidence that defendants' agent understood that the policy issued was for a re-insurance. That although defendants' policy, had it been issued to take up those of plaintiffs, might be void, because plaintiffs' policies were not canceled. Defendant waived such rigat, by receiving the premiums from Mrs. C. after the fire, and when its agents knew plaintiffs' policies were still in existence. That plaintiffs are entitled to recover as assignees of Mrs. C. That although McC. was not the agent of Mrs. C., and had no authority from her to procure the insurance from defendant, she afterward ratified his acts, paid the premium, and thus rendered the policy valid ab initio. That such ratification was sufficient, although made after the fire. That there being no request to submit the question, whether the premium was paid to defendants' agent under protest, to the jury, the finding of the court is conclusive that it was not so paid. That if the plaintiffs had purchased defendants' policy of Mrs. C., unconnected with their liability upon their own policies, it would be doubtful whether such purchase would have been valid. But, in this case, the purchase was undoubtedly valid. Defendants' policy contained a clause that, in case of other insurance on the same property, defendants should only be liable to pay its ratable proportion, according to the terms of its policy. Held, that under this clause defendant's policy, the plaintiffs' policies being in existence at the time of the tire, plaintiff could only recover, as assignees of Mrs. C., one half of defendants' policy.

In Mütenberger v. Beacom, 9 Penn. St. 198, it was held that one for whose benefit insurance had been effected, without his authority, might, even after a loss, adopt the act of such person, and by relation, such adoption extended back to the issuing of the policy, and rendered it an operative security.

case,' the plaintiff called upon the defendant s agent in January, 1866, to insure $26,000, upon a quantity of cotton, and paid the premium. thereon. No company was designate in which the risk was to be placed, and the agent was also agent for several other companies. No policy was made out, but the agent entered $6,100 of the risk in the book of the defendant, reported the risk to them and forwarded the premium. In February, 1866, the property was damaged by fire, and after the loss, the agent made out and delivered a policy in the defendant company to the plaintiff, and in an action upon the policy to recover the loss, the court, upon these facts, directed a verdict for the plaintiff, which was sustained by the Court of Appeals."

1

1 Ellis v. Albany City Fire Ins. Co., 50 N. Y. 402.

GROVER, J., in delivering the opinion of the court, upon this question, said: "The inquiry in this case is whether an agreement to issue a fire policy upon the cotton, for the loss of which this action was brought, was made by the defendant. It was proved that C. F. McCoy, a resident of Augusta, Georgia, in 1865 was engaged in the insurance business as agent for several insurance companies, incorporated by different States; that in November of that year the defendant appointed him its agent, giving him a power of attorney, the material part of which in this case was as follows: 'Be it known, that C. F. McCoy, of Augusta, State of Georgia, is hereby duly appointed and constituted an agent of the Albany City Fire Insurance Company, at Augusta, during the pleasure of said company. As agent, he is authorized and empowered to receive proposals for insurance against loss or damage by fire, and to make insurance by policies of the said Albany City Fire Insurance Company, to be countersigned by the said C. F. McCoy, and to renew the same, to assent to assignments and transfers.' That at the same time defendant delivered to McCoy a quantity of blank policies of insurance, signed by its president and secretary. The question in this case is whether this authorized McCoy to make a contract binding upon the defendant for the issue of a policy of insurance. In determining this question the prevailing usage in transacting such business must be regarded; as it is an elementary principle that the delegation of an authority to transact any business includes an authority to transact it in the usual way, and to do the acts usual in its accomplishment. It must also be kept in mind that he was clothed with full authority to make all necessary surveys to determine the risk, its duration and the rate of premium, without any reference to a consultation with the company or any of its officers; in short, to negotiate and conclude all the terms of the contract, and to consummate it by filling up and countersigning the policy. This necessarily includes power to make a preliminary contract for the issuing of a policy; as it is manifest that no policy could ever be issued in the absence of such a contract. The question is whether this preliminary contract is binding upon the company. In other words, whether, when made, and the premium therefor paid by the assured, the company is bound, before the policy is actually filled up, countersigned and delivered. It is clear that if binding upon the company at all for the shortest period of time, it will so continue until, by some act of the assured or in some other way, it is discharged therefrom; mere lapse of time, short of the running of the statute of limitations, will not have this effect. The usage of making agreements for insurance and paying the premiums, providing for the issuing of policies thereafter, to be dated at and in force from the time of making the agreement, is so general that judicial notice must be taken of it. It would, upon principle, follow that an unrestricted authority to negotiate a contract of insurance by issuing a policy, included authority to make a valid preliminary contract for such issue. In Post v. Etna Insurance Co., 43 Barb. 361, it was shown that the agent was intrusted with blank policies and certificates of renewal, executed by the officers of the company, which provided that they should not be operative until countersigned