On application for rehearing we are asked to hold that an agent for an insurance company, who acts in a limited capacity, which limitations are known to the insured, can, in excess of such limitations and without the request of insured, issue to the insured a receipt without collecting the money for a past-due premium by which, without the knowledge, consent, or ratification of the principal, the insured is reinstated to all the rights theretofore had, under a policy which by its terms had become forfeited, and that, too, at a time when the insured was
Known to be sick and in a hospital, and could not comply with the conditions of the receipt. In this case, let it be conceded that the local clerk was the agent of the defendant. By all the evidence this agency was limited, of which limitations the insured had knowledge and was bound. The insured writes the agent admitting his default, stating the fact of illness, but making no payment, no request for extension, or request for reinstatement. The agent, upon receipt of this letter, issues a receipt containing the condition stated in the original opinion. This was an assumption on the part of defendant's agent to act for the insured without the assent of defendant. In all such cases the principal may avoid the transaction at his election. Authorities cited in original opinion. While in the case of Henton v. Sov. Camp, W. O. W., 87 Neb. 552,127 N.W. 869, 138 Am. St. Rep. 500, it was held that the act of the local clerk, being the agent of defendant, by a receipt of a premium and entering the fact of assured's suspension and reinstatement on the records of the local camp, which facts were reported to the Sovereign Camp, and audited by it, might amount to a waiver, it must be noted that in the Henton Case, supra, the local clerk did not assume to act for the member, but in the line of his agency collected the dues, remitted them to the Sovereign Camp, who retained them without objection, and allowed its local clerk to collect the next month's dues before the death of insured. Demand and acceptance of subsequent assessments or dues by an agent authorized to do so, will estop the insurer from objecting that all the formalities of reinstatement were not complied with. Hoffman v. Supreme Council, A. L. H. (C. C.) 35 Fed. 252. But in this case there was no payment or attempted payment by the insured to Clark. Clark, being an agent of defendant with limited authority, of which the insured had notice in such manner as to be bound, merely issued to insured a receipt by which he (Clark) became liable to pay the amount named therein to this defendant, which he did in his next monthly remittance in November after the death of insured. Assuming, as we have in this opinion, that the issuance of the receipt was in effect a payment of the premium by Clark for the insured to Clark, the clerk, such transaction is bound to come under the rule that a person cannot act as agent for persons having antagonistic interest, and, where an agent of a principal assumes so to act, such principal is not bound until, with full knowledge of all the facts, the principal elects to affirm. Mercantile Mut. Ins. Co. v. Hope Ins. Co., 8 Mo. App. 408; Utica Ins. Co. v. Toledo Ins. Co., 17 Barb. (N.Y.) 132; N.Y. Central Ins. Co. v. Nat. Ins. Co., 20 Barb. (N.Y.) 468; Carr v. Nat. Bank, etc., Co.,167 N.Y. 375, 60 N.E. 649, 82 Am. St. Rep. 725; U.S. R. S. Co. v. Atlantic, etc., R. Co., 34 Ohio St. 450, 32 Am. Rep. 380; Hunter Realty Co. v. Spencer, 21 Okl. 155, 95 P. 757, 17 L.R.A. (N.S.) 622. This right of repudiation exists for the benefit of the principal, and for his protection, and he may waive it at his option. If after a full knowledge of all the facts and circumstances he deliberately and freely ratifies the act of the agent, or acquiesces in it for a great length of time, he will be bound by the agent's acts, not by reason of its own inherent force, but from the consideration that he thereby waives the protection secured by the law for his protection, and deals with his agent quoad hoc, discharged of his agency. U.S. Rolling S. Co. v. Atlantic, etc., R. Co., supra. In such a case he is estopped to take a contrary position. But in this case it is shown without conflict that no ratification of the unauthorized act of Clark was ever had by the Supreme officers of the defendant having authority to act in the premises, with full knowledge of the facts. Nor does it appear from the facts of this case, under the congested conditions of the volume of business of defendant's office due to excessive claims, that defendant retained the premium money an unreasonable time for investigation, the premiums being held, under the terms of the receipt, with a willingness at all times to account therefor. Fraser v. Ætna L. Ins. Co.,114 Wis. 510, 90 N.W. 476.
Since the opinion in this case was prepared the Supreme Court, in the case of Sov. Camp, W. O. W., v Eastis, 210 Ala. 29,96 So. 866, has said:
"At the time of the receipt and inspection of the certificate as to the reinstatement of Eastis by the Sovereign Clerk, said Eastis was dead. [Citing authorities.] The conditions precedent to reinstatement had not been complied with as per provisions of section 117 of the by-laws in evidence. The affirmative charge should have been given for the defendant."
In this case the certificate as to the reinstatement of Ballard was not received by the supreme officers until long after Ballard's death, the condition precedent to reinstatement had not been complied with, and we have seen by the foregoing opinion, under the facts in this case, Clark's act did not waive the filing of the health certificate, and notice to him was not notice to the defendant. The defendant was entitled to the affirmative charge.
The application for rehearing is overruled.