Cullinan v. Bowker

Chase, J.

The blank bonds in OhanneU’s possession applicable for use under the provisions of the Liquor Tax Law had been-signed in the name of the company by its president, but they were incomplete and valueless as obligations until the principal to be named in each had been considered, passed upon and accepted as a party thereto, and the instrument completed in form had been executed by the agent in accordance with his written authority. They were not sent by the company for delivery, but as unexecuted instruments.

When the bond in question was received by the county treasurer, it had not been executed, and it was not received as an executed instrument, but in expectation that at some future time it would be executed and thus become in form a valid and complete instrument. The county treasurer had full knowledge of the extent of Ohannell’s authority, and upon the instrument as accepted by him were the words, “ This bond shall bind said surety company only when signed by F. S. Channell, its lawful resident assistant secretary at Malone, N. Y.”

The liquor tax certificate was delivered without a bond as provided by sections 18 and 19 of the Liquor Tax Law (supra). Any agreement made by Channell through his clerk was not made by virtue of authority derived from the defendant. It was an obligation wholly personal, enforcible, if at all, against him alone. As every one interested in the instrument had full knowledge of the extent of Channell’s authority, no question of waiver or estoppel arises.

The power of agents of insurance companies when their authority is clear and fully known is stated by the Court of Appeals m Quinlan v. Providence Washington Ins. Co. (133 N. Y. 356) as follows: “The powers possessed by agents of insurance companies, like those of agents of any other corporations, or of an individual principal, are to be interpreted in accordance with the general law of agency. No other or different rule is to be applied to a contract of insurance than is applied to other contracts. The agent of an insurance company possesses such powers and such powers only, as have been conferred verbally, or by the instrument of authorization, or such as third persons have a right to assume that he possesses. Where the act or representation of the agent of an insurance company is alleged as the act of the principal, and, therefore, binding upon the latter, the test of the liability of the principal is the same as in other cases of agency. No principle is better settled in the law, nor is there ' any founded on more obvious justice than that if a person dealing with an agent knows that he is acting under a circumscribed and " limited authority, and that his act is outside of and transcends the authority conferred, the principal is not bound and it is immaterial whether the agent is a general or special one because a principal may limit the authority of the one as well as that of the other. * * * Where a policy permits an agent to exercise a specified authority, but prescribes that the company shhll not be bound unless the execution of the power shall be evidenced by a written indorsement on the policy, the condition is of the essence of the authority and the consent or act of the agent not so indorsed is void. * * The power of agents as expressed in the policy, may be enlarged by usage of the company, its course of business, or by its consent express or implied. * * * But where the restrictions upon an agent’s authority appear in the policy, and there is no evidence tending to show that his powers have been enlarged, there seems to be no good reason why the authority expressed should not be regarded as the measure of his power.”

In this case there arises no question of usage, or as to implied authority. Channell’s authority was" in writing, plainly stated, and the county treasurer with a copy of the authority before him was bound thereby. If the bond had been actually signed with the name of Ohannell, and the county treasurer had received it in good faith, as a completed instrument, other questions might have arisen. The signing of the instrument by Ohannell after the liquor tax certificate had expired and long after it had been canceled and surrendered by reason of the violation of the Liquor Tax Law, against which violation the bond was given, and for which the penalty of the bond became payable, was not an execution within the power and authority of Ohannell.

We are of the opinion that the instrument was never so executed by the defendant as to make it liable thereon.

All concurred; Houghton, J., not sitting.

Judgment reversed, and new trial granted, with costs to appellant to abide event.