GWALTNEY v. ASSURANCE SOCIETY.

frequently occur between men both of whom are honest and truthful. We have all doubtless noticed contradictions in testimony between men of equal reputation and apparently of equal knowledge. The only way I can account for this is that men are unconsciously swearing to legal conclusions. For instance, A and B have a long conversation, of which the exact words are probably remembered by neither. A swears that B agreed to do a certain thing, while B swears he did not. A, who is probably swearing, not to B's words, but to the effect produced on his own mind by the conversation, thinks there was a legal contract; while B, who perhaps regarded the entire conversation as an unclosed negotiation, is equally positive that there was no contract. Under such circumstances the jury alone can determine the question. Where one party is dead and the uncontradicted evidence comes alone from the other side, the jury is almost compelled to find for the survivor. To remedy this hardship the Legislature passed an Act known as Section 590 of The Code. If Jones' estate or any one claiming under him were a party to this action, the plaintiff would not be permitted to testify as to any transaction with Jones, but as his estate has no pecuniary interest in the suit, which is against the insurance company alone, such testimony is competent. That the moral interest of the deceased and his family can not be considered is one of the hardships of the law which we are powerless to remedy. It is but just to the plaintiff to say that the terms of the policy itself were apt to mislead him, and I am surprised that the defendant company should make even a conditional representation which is apparently so utterly incapable of fulfilment.

MONTGOMERY, J., dissenting. The first issue submitted to the jury was in these words: "Was Jones the general agent of the defendant company at the time alleged in the complaint?"

GWALTNEY v. ASSURANCE SOCIETY.

I think the judge erred when he refused to charge the jury, as he was requested to do by the defendant, that if they be lieved the evidence they should answer the issue in the negative. From the deposition of William E. Stevens, secretary of the defendant company, it appears that the agent Jones at Greensboro was authorized to receive applications for insurance, to deliver policies to applicants after their issuance by the society, and to collect and report premiums on the same; that Jones had no authority or power to issue policies or to change, waive or alter their terms in any way, and that in this particular instance he had nothing to do with the issuance of the policy except to deliver it to the plaintiff after it had been sent to him (Jones) from the New York office. It appeared also from the evidence of J. N. Ballentine, assistant secretary of the company, that the agent Jones was appointed to solicit applications and to deliver policies that would be written, to collect the premiums required thereon and to appoint local agents, and that he had no other powers; that all policies were issued from the New York Office where the applications were passed upon and were then sent out to the agent for delivery by them to the insured; that the term "general agent" was merely an office distinction between a territorial and local agent, and that a general agent had no different powers from a local agent about writing policies and sending on applications. The evidence of the plaintiff on this point was that he knew no limitations of the authority of Jones and supposed he had full power to act for the company; and that Jones held himself out as the general agent of the company.

In Berry v. Insurance Co., 132 N. Y., 49; 28 Am. St. Rep., 548, there was a change by the general agent in a material matter in the policy, and the company was held to have waived that condition of the policy. But it is affirmatively stated in that case that the agents "were general agents, having authority to make contracts without reference to the home

GWALTNEY V. ASSURANCE SOCIETY.

office, and their power to waive conditions in the policy was co-existent with that of the company itself." The plaintiff in this case well knew that Jones did not intend to issue the policy himself, but on the contrary he knew that it had to be issued at New York, the home of the company, and sent back to Jones at Greensboro to be delivered to the plaintiff. Berry v. Ins. Co., supra, was quoted by this court in Grubbs v. Ins. Co., 125 N. C., 389, and the court said in connection with it: "It is needless to say that the expression 'general agent' occurring in the above opinion was used in its legal sense as implying general powers, and not in the geographical sense in which it is usually employed by insurance companies." The reputation of the agent Jones was destroyed upon evidence submitted to the jury after he was in his grave, and his family, if he left one, are to bear the reproach although Jones' statement of the matter was not before the court. If the evidence of the plaintiff himself, who testified also that up to the trouble about the policy he knew nothing about Jones except what was good, and that of A. A. Shuford and the language of the note attached to the policy be considered together, it might be concluded, without injury to the character of either, that there was a mutual misunderstanding between the plaintiff and Jones, the agent, on the question involved in this litigation. That note was in these words: "Provided the mortality in this society shall be as favorable in the future as it has been in the past in the largest and best of the other companies (thus far it has been more favorable), this insurance will be extended and renewed during the whole expectation or probable life time of the insured at the rate of premium for the first year only of the policy."

GWALTNEY V. ASSURANCE SOCIETY.

I think the judge erred when he refused to charge the jury, as he was requested to do by the defendant, that if they be lieved the evidence they should answer the issue in the negative. From the deposition of William E. Stevens, secretary of the defendant company, it appears that the agent Jones at Greensboro was authorized to receive applications for insurance, to deliver policies to applicants after their issuance by the society, and to collect and report premiums on the same; that Jones had no authority or power to issue policies or to change, waive or alter their terms in any way, and that in this particular instance he had nothing to do with the issuance of the policy except to deliver it to the plaintiff after it had been sent to him (Jones) from the New York office. It appeared also from the evidence of J. N. Ballentine, assistant secretary of the company, that the agent Jones was appointed to solicit applications and to deliver policies that would be written, to collect the premiums required thereon and to appoint local agents, and that he had no other powers; that all policies were issued from the New York Office where the applications were passed upon and were then sent out to the agent for delivery by them to the insured; that the term "general agent" was merely an office distinction between a territorial and local. agent, and that a general agent had no different powers from a local agent about writing policies and sending on applications. The evidence of the plaintiff on this point was that he knew no limitations of the authority of Jones and supposed he had full power to act for the company; and that Jones held himself out as the general agent of the company.

In Berry v. Insurance Co., 132 N. Y., 49; 28 Am. St. Rep., 548, there was a change by the general agent in a material matter in the policy, and the company was held to have waived that condition of the policy. But it is affirmatively stated in that case that the agents "were general agents, having authority to make contracts without reference to the home

GWALTNEY v. ASSURANCE SOCIETY.

office, and their power to waive conditions in the policy was co-existent with that of the company itself." The plaintiff in this case well knew that Jones did not intend to issue the policy himself, but on the contrary he knew that it had to be issued at New York, the home of the company, and sent back to Jones at Greensboro to be delivered to the plaintiff. Berry v. Ins. Co., supra, was quoted by this court in Grubbs v. Ins. Co., 125 N. C., 389, and the court said in connection with it: "It is needless to say that the expression 'general agent' occurring in the above opinion was used in its legal sense as implying general powers, and not in the geographical sense in which it is usually employed by insurance companies." The reputation of the agent Jones was destroyed upon evidence submitted to the jury after he was in his grave, and his family, if he left one, are to bear the reproach although Jones' statement of the matter was not before the court. If the evidence of the plaintiff himself, who testified also that up to the trouble about the policy he knew nothing about Jones except what was good, and that of A. A. Shuford and the language of the note attached to the policy be considered together, it might be concluded, without injury to the character of either, that there was a mutual misunderstanding between the plaintiff and Jones, the agent, on the question involved in this litigation. That note was in these words: "Provided the mortality in this society shall be as favorable in the future as it has been in the past in the largest and best of the other companies (thus far it has been more favorable), this insurance will be extended and renewed during the whole expectation or probable life time of the insured at the rate of premium for the first year only of the policy."