Co-operative Life Ass'n v. McConnico , 53 Miss. 233 ( 1876 )

Chalmers, J.,

delivered the opinion of the court.

A. J. McConnico took out a policy of insurance on his own life, in favor of his wife, in the company of the plaintiffs in error. He failed to pay the annual premium due last before his death, and thereby, according to the terms of the policy, it became forfeited. His widow, nevertheless, obtained judgment for the full amount of the policy, on the following state of facts: —

H. L. Duncan was the agent of the plaintiffs in error to-solicit insurance throughout a number of counties in the northern part of the state. By the terms of his appointment, which was put in evidence by the plaintiff below (Mrs. McConnico), he had no authority to receive payment of any premiums or dues to the company, save the first one, which was payable at the time of effecting the insurance. All subsequent dues were to be forwarded to the home office.

The system of conducting the business of the company was peculiar: certain sums known as “ mortuary dues ” were payable by every policy-holder upon the death of any other policyholder ; and a failure to pay these within thirty days after receiving notice from the home office of the death of such other policy-holder worked a forfeiture of the policy. In addition, a small amount called “ the annual due ” was to be paid yearly.

Duncan lived at Water Valley, and succeeded in obtaining a number of' insurances there and in the vicinity. When the parties insured received calls from the home office, which was located at Winona, some of them became accustomed to hand the amounts due to Duncan, who would transmit them to the home office ; but in all cases the receipts were sent back by the company directly to the policy-holders and not to Duncan. Some of the parties who transmitted their dues in this manner testified that they supposed that Duncan had authority to receive them, and by his reception to bind the company. It is impossible to see how they could have been so misled, because in each case the notices which they received, not through Duncan, but directly from the home office, advised them that the money might be sent at the risk of the company, provided it was remitted by express, by registered letter or by postal money-order; and, as before remarked, the receipts were sent back directly to them. It is not pretended that McConnico ever remitted his dues in this manner, but, on the contrary, it is affirmatively shown that he always sent them directly to the home office, save the last annual premium, which he failed to pay at all; neither is it pretended that he gave the money for the purpose of making this last payment to Duncan. The proof shows, however, that Duncan was indebted to McConnico, and, upon some occasion, the date of which is not fixed, had promised to pay the sums that might fall due from the latter to the company, so as to keep alive his policy.

From these facts it is argued that although Duncan had no express authority to receive these mortuary and annual dues, yet his habit of doing so being known to and recognized by the company by a reception of them through him, he thereby became invested with such authority; and that, being thus by custom created the agent of the company for that purpose, he had the power to waive an actual payment, and by his own promise to the policy-holder that he would make the payment bind the company as fully as if in fact the money had been paid.

This is certainly pushing the doctrines of implied powers in agents, and of the validity of waivers by them, beyond any thing that we have seen in the books.

It is undoubtedly true that where agents without express authority assume to act for their principals, and the latter, knowing of such assumptions, acquiesce in and receive the benefit of their acts, the principals will be bound, if eventual loss should occur; that from a continued course of such dealings the public will be at liberty to deal with the agents as having original authority to perform the acts, and the principals will be estopped to deny it.

It is no less true that an agent with full authority may, under many circumstances, waive the performance of conditions precedent, and, by such waiver, bind his principal. But we have found no case where a confessedly unwarranted assumption of authority was first held to be conferred through acquiescence, and then an unauthorized waiver by the self-constituted agent was declared obligatory upon the principal, who, it was admitted, had never heard of or acquiesced in the waiver. We know of no principle or authority which would sanction such a doctrine. But even if the principle was correct, the facts of the case do not meet its requirements.

There is nothing from which an acquiescence by the company in Duncan’s right to receive the dues can be inferred. They did receive the money from him, as they would, we presume, have received it through any channel the policy-holder might have selected for its transmission ; but there is nothing to indicate that they knew or suspected that the parties were dealing with him as the agent of the company, and there is every thing to show that they regarded him as the agent oí the parties making the remittances. They kept no accounts against Duncan, and the calls for the dues were made upon, and the acknowledgments of receipts of payment were sent directly to, the policy-holders. Above all, it does not appear that McConnico knew of Duncan’s habit to receive these payments, or that he could have been misled by it. It is affirmatively shown that he always made his remittances directly to the home office, and, for aught that appears in the record, continued s'o to do after Duncan had agreed to make the payments for him.

Under these circumstances, it is impossible to perceive how the forfeiture by non-payment of the last annual due (we use the word because it seems to be adopted by the corporation) could be prevented by the personal obligation, which Duncan had assumed, of meeting it. The company had no connection with or knowledge of his assumption, and could not be bound by it.

None of the charges given for the plaintiff below were applicable to the facts proved, and should therefore have been refused. The fourth charge asked by the defendant below should have been given.

Judgment reversed and cause remanded.