Haar v. Industrial Benefit Ass'n

HARDIN, P. J.

Plaintiff called as a witness Lumbert, the secretary, and general manager of the defendant, who testified that the proof of death was received by the defendant February 5, 1892, and that after the proof was received the company paid $100 on the claim. He also disclosed the correspondence that had ensued between the company and the attorney for the plaintiff just prior to the commencement of this action; that the company took action upon the proof, and rejected the claim. He also testified that Colvin, the agent of the company, visited the city of Utica for the purpose of adjusting the claim, and that he made a report to the company of the result of his investigations, and that the company had received the agreement as to a compromise and a return of the certificate, and the execution by the defendant of its order on its treasurer, bearing date the 28th of March, 1892, and that the company received the policy by mail from the treasurer, and approved it, and returned it to the treasurer; that thereupon the draft for $100 issued by the First National Bank was obtained. He also testified that the agreement of March 26th was delivered to the company by Mr. 'Calvin after visiting Utica, and that thereupon the company made its order upon its treasurer for the payment of the $100 to the plaintiff, and that it was forwarded by mail. It appears the bank draft was sent to Wagner, the local agent of the defendant in the city of Utica, and in a day or two after receiving the same he delivered the same to the husband of the plaintiff, and the husband of the plaintiff delivered the same to his wife, and the wife indorsed it, and used it to obtain the money on it, and did not restore the money before the commencement of this action. Inasmuch as this witness was called in behalf of the plaintiff, his testimony is to be accepted as entitled to belief. Upon looking into the evidence given by the witness Colvin and the witnesses Herman Haar and the plaintiff herself, it seems to be quite clearly established that the husband had an interview prior to the execution of the paper of the 26th of March, with the agent, and met him by appointment at the office of Wagner, and that while in the office of Wagner there was quite a discussion over the amount of this claim, and an adjustment of it. It seems that Colvin raised some question about the validity of the claim, and, according to the testimony of Herman Haar, the husband of the' plaintiff, Colvin first offered to pay five dollars for every one that had been paid towards the policy, and that that offer Haar declined to accept, and thereupon Colvin offered him $50 for the claim, and Haar declined “to do anything of the kind.” And the appeal book shows further as to that interview as follows:

“Then he and Mr. Wagner went into another side room, and had a conversation, and Wagner called me in there. Wagner says, ‘You had better settle with him, or you won’t get anything at all.’ Colvin says, T will make it $75.’ I says, ‘Can’t you go any more?’ He says, ‘No.’ 1 says: ‘Can’t you give about what the old lady cost? She has cost about $300 now.’ ‘Well,’ he says, ‘that has nothing to do with our company.’ ‘Well,’ I says, ‘she was transferred from the Rochester Company into your company. You were anxious to get her.’ He says: T will make it $100. The company won’t allow me to do that, and, if I report that I have paid you $100, off goes my head.’ 1 said I would accept the $100 under protest. Says he: ‘All right. I will write a paper here, and you sign it.’ ”

Thereupon the agreement to accept $100 was made out, and signed by Haar in his own name and in the name of his wife, and witnessed by Colvin. Haar testifies:

“After talking with Mr. Colvin at the office, he drew that agreement, and 1 agreed to accept the $100 in settlement. After that agreement was made, 1 signed it for my wife. Well, yes, I signed it understanding that I represented my wife. The next morning after I had signed this, I told my wife about what I had done. I told her I had signed it for $100.”

When the plaintiff, the wife, was upon the stand, she testified her husband—

“Told me in the morning that he had made an apointment to meet him down at the company’s office, and talk it over; that he was going to see about a settlement. When he came back he told me that he had settled. I said: ‘What made you? You didn’t have any authority to settle.’ He said he had settled for $100. He didn’t say anything about signing an agreement. I did not ask him where the money was. He didn’t tell me whether he got the $100 or not.”

She also testified that the draft for $100, dated April 2, 1892, was delivered to her, and that she made an indorsement thereon, and got the money on it. She adds:

“I knew what it wras for. It was told to me by my husband. He told me when I took it away from him. He had it in his pocket for two days. He told me it was a check for $100 from the insurance company on this policy.”

It was admitted upon the trial that “she knew when she took that and indorsed it that the money was from the insurance company.” She also testified:

“My husband told me in the morning that he was going down to see about the settlement of that claim. I understood that was the object of his going down. Question. It was to get the matter compromised, if he could? Answer. Yes, sir.”

After a careful perusal of all the evidence, it is quite apparent that the adjustment was made by the husband as the agent of the wife, and that she had knowledge that he was to enter into-negotiation with Colvin with a view of adjusting the claim, and obtaining thereon what money could be secured by way of a settlement, and that, shortly after the adjustment was made between, the husband and Colvin, she had- information of the details thereof, and understood the facts and circumstances relating to the adjustment before she received the draft, which was made payable-to her order, and indorsed by her, and upon which she received the money. All the testimony justifies a belief that she ratified? the act of the husband in making the adjustment. She acquiesced, in it. She adopted the draft by an indorsement thereof, and actually received the money. Even if it be assumed that she had; not given explicit authority or exact directions as to the adjustment, yet, as she was made aware of the adjustment, and accepted-the fruits of it, she ratified the settlement. In Owings v. Hull, 9 Pet. 629, it is said “that the ratification of an act of an agent,, previously unauthorized, must, in order to bind the principal, be with a full knowledge of all the material facts. If the material' facts be either suppressed or unknown, the ratification is treated as invalid, because founded in mistake or fraud.” This doctrine-has been reasserted in Seymour v. Wyckoff, 10 N. Y. 213, and numerous other cases. We think the evidence found in the appeal' book brings the case within the principle alluded to, and that the plaintiff is bound by the adjustment made. The essentia! facts which give rise to the conclusion that there was a ratification-are not the subject of dispute or contradiction, Nassoiy v. Tomlinson, (Sup.) 20 N. Y. Supp. 384, cited by the appellant, differs-from the case before us, as in that case the party had received what “was no more than his due,” with full notice “that it was not accepted in full,” and that it was applied in part payment of the indebtedness. Our attention is called to Ryan v. Ward, 48 N. Y. 204, which was a case where there was a payment of a portion of an undisputed account, and a receipt was given in full, and it was-held that a party was not precluded from recovering the balance. In the case before us there was such a dispute as to the claim prior-to the consummation of the adjustment as to distinguish it from the case just cited. If the trial judge had permitted the case to pass-to the jury, and a verdict had been found, upon the evidence, in favor of the plaintiff, it is probable that the same views that led him to grant the nonsuit would have induced him to have set the-verdict aside, as against the weight of evidence. Under such circumstances, we think the direction given at the circuit by the-learned trial judge should be sustained.

Judgment affirmed, with costs. All concur.