Judges: McLaughlin
Filed Date: 3/10/1905
Status: Precedential
Modified Date: 11/12/2024
This action was brought to recover the sum of $300, with interest thereon from a time specified, premium alleged to have been paid by the plaintiff in procuring for the defendant certain
The contract referred to in the complaint provided, in the second paragraph thereof, that the defendant would pay on demand to the plaintiff “at the uniform rate of $4 per year * * * for every $100 of insurance procured. * * *” The plaintiff testified at the trial that after the contract went into effect he procured thereunder two policies of insurance, and delivered the same to the defendant—one for $5,000, in the American Underwriters, and one for $2,500, in the New England Underwriters; that he paid the premiums on these policies to the insurance companies, and was entitled to receive from the defendant by reason thereof, under the terms of the contract, $300. On his cross-examination the defendant endeavored to show that prior to the plaintiff's obtaining' the policies referred to in his direct examination he had procured other policies aggregating $50,000, for which it had paid to him 4 per cent, thereon, or $2,000, and that the policies in question were obtained to take the place of policies for a similar amount which had been canceled by the companies issuing them. This proof was objected to as immaterial and irrelevant. The objection was sustained, and an exception taken. The plaintiff, having offered the foregoing proof, rested, and thereupon the defendant sought to prove by its treasurer, what it had been prevented from proving by the plaintiff, viz., that after the contract went into effect, and before the issuance of the policies referred to in the complaint and in plaintiff’s testimony, plaintiff procured for the defendant policies aggregating $50,000, for which it paid him 4 per cent., or $2,000, and that the procurement of the policies referred to by the plaintiff and mentioned in his complaint was simply to take the place of two other policies for a similar amount, which had been canceled at the instance of the companies issuing them. This proof was also excluded, and an exception duly taken.
. I am of the opinion that the court erred in each instance, and that the exceptions taken necessitate a reversal of the judgment. The contract must be construed in the light of all the facts and circumstances surrounding both parties at the time it was made, and, when so con
If this view as to the construction of the contract be correct, then it necessarily follows the defendant was entitled to prove that it had already paid to the plaintiff $2,000 to keep in force $50,000 of insurance for a period of one year, and that the policies in question were procured by the plaintiff simply to take the place of other policies for a similar amount, which had been canceled by the insurance companies. If such proof had been made, and that fact had been conceded, or the jury had so found, the plaintiff would not have been entitled to recover.
The judgment appealed from, therefore, must be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.