Continental Fire Ins. v. Brooks , 131 Ala. 614 ( 1901 )

HARALSON, J.

1. The complaint being in Code form, contains a sufficient averment of an insurable interest in the plaintiff. — Com. F. Ins. Co. v. C. C. Ins. Co., 81 Ala. 320.

■■ The plaintiff had an insurable interest in the property. He ha'd contracted to sell it to Henderson, a deed to be made when the entire purchase money was paid. A deed had not been made, and there remained due to plaintiff on the purchase money, about $900, the insurance on the property destroyed being $500. He had an equitable lien or mortgage on the property for the payment of his debt. — Hester v. Hunnicutt, 104 Ala. 282. “Whoever,” — says May — “may fairly be said to have a reasonable expectation of i deriving pecuniary advantage from the preservation of the subject-matter of insurance, whether that advantage inure® to him personally or as the representative of the rights or interests of another, has an insurable interest. Thus a mortgagee being the owner of a limited interest in the estate, has in his own right an insurable interest to the amount of the mortgage debt..”- — 1 May on Ins., § 80. “A vendor of personal or real property, though he may have contracted to sell the same, has also an insurable interest.”- — 77c. § 83 a; 11 Am. & Eng. Ency. Law, 313-315.

2. Replicaton 3 alleged that Pennington, was the general agent of the defendant, at the time he agreed to waive the condition in the policy set up in the pleas, in respect to a change of ownership and possession of the property. The rejoinders of defendant to this replication did no more than deny that Pennington was such general agent at that time. • They amounted to no more than a joinder of issue on said replication. Moreover, the case was tried on issue joined to the replication, and the defendant.had all the advantage he could have enjoyed, if said rejoinders had not been stricken. We discover no error in striking out the rejoinders. — Comer v. Way & Edmondson, 107 Ala. 300.

3. Every fact averred in the 3d replication, demurrer to which was properly overruled, ivas fully established, without any conflict in the evidence.

It is insisted by defendant, that the condition in the policy as recited in the. pleas, required that any change in the title or possession of the property would avoid the policy, unless an agreement that such, change might be made, was indorsed on the policy. 'The replication, confessing the sale of the property and a change of possession, set up that the general agent of the company, with full knowledge of all the facts, waived the condition. The question as to whether a general agent, with the poAvers, that Pennington had, might Avaive this condition, has been so often considered and decided favorably to his doing so, it requres no further discussion at our hands. It must be regarded as finally settled with us. — A. S. M. Asso. v. Long C. & S. Co., 123 Ala. 667; Pope v. Glens F. Ins. Co., 130 Ala. 356, and authorities in these cases cited; 1 Joyce on Ins., §§ 439, 560; 2 Bid. on Ins., § 1081.

4. Pennington AVho testified to substantially the same ñu ts that Avere deposed to by plaintiff, also testified, that he had been the agent of defendant for about fifteen years, and until a few months before the conversations had with him by plaintiff, touching the sale by him of the property to Henderson; that .'as such agent of defendant he had full power and authority to bind defendant by his agreements to waive orally the conditions in the policy set out in the pleas, in the case; that the company gave him that authority, 'and that he had exercised the same -with their knoAvledge and consent all the time during the ¡term of his agency; that when he ceased to be the agent of defendant, no notice Avas given to the public of that fact, and none to the plaintiff, so far as he kneAv. The plaintiff had testified that he had no knowledge or 'notice that Pennington had ceased to be the agent of defendant, until after the fire occurred.

The rule on this subject, as -stated by this court, supported by the current of authority is, that “when third parties have -dealt with an agent clothed with general powers, the agency continues as to them, after revocation, until they have notice thereof. Also, the principal may be liable for acts of the agent after revocation, to third persons, who never dealt with him previously, if they, in common with the public at large, are justified in believing that such agency existed, and have no- notice of its revocatiofl.” — Wheeler v. McGuire, 86 Ala. 398; Johnson v. Christian, 128 U. S. 374; 1 Am. & Eng. Ency. Law (2d ed.), 1220; Mechem on Agency, §§ 223, 224.

All the evidence, without conflict shows, that Pennington was defendant’s general agent, at the time the policy issued to plaintiff, with power and authority to waive the condition in the policy referred to in the pleas, and that at the time he waived the same, the plaintiff in good faith believed he was -such general agent, relied on his authority as su-eh, and had no notice or knowledge that the agency had' terminated.

There was no error in the general charge for plaintiff.

Affirmed.