
    Roxa Squier, Respondent, v. Hanover Fire Insurance Company of New York, Appellant.
    
      Mre insurance—an oral agreement by an agent to continue the insurance enforced.
    
    Where the agents of an insurance company send notice toan insured that her policy will expire upon a date named, and that, unless the agents receive word to the contrary, it will be renewed upon its expiration, and one of such agents .is told by the insured’s husband, acting as the agent of the insured, before the expiration of the policy, that he wished it renewed, to which the agent replies ' “all right,” that he will issue the policy, the company is estopped from asserting a want of power in the agents to make the contract of renewal of the insurance.
    Appeal by the defendant, the Hanover Fire Insurance Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chautauqua on the 25th day of January, 1897, upon the verdict of a jury, and also from, an order entered in said clerk’s office on the 25th day of January, 1897, denying the defendant’s motion for a new trial made upon the minutes.
    On the 20th of December, 1893, the defendant, through its agents, Horton Brothers, of Jamestown, N. Y., issued a fire insurance policy to the plaintiff insuring her household goods and furniture against loss or damage by fire for one year. It was a standard policy and insured the property for the sum of $600. Horton Brothers were, and for a long time had been, the agents of the defendant at Jamestown, and it was admitted by the pleadings and proved upon the trial that they had authority and full power from the defendant to receive proposals for insurance against loss and damage by fire in Jamestown, N. Y., and vicinity at fixed rates of' premiums, to receive moneys and to countersign, issue and renew policies of insurance signed by the president and attested by the secretary of the defendant, subject to the rules and. regulations of the defendant and to such instructions as it might from time to time give to its agents. It was the custom of these agents, when a policy that they had issued was about to expire, to send out notice of the expiration of the policy to the insured. A short time before the expiration of the policy here in question, and in December, 1894, these agents served upon the plaintiff a written notice that the policy would expire on the 20th of December, 1894, and that, unless they, the agents, received -word to tbe contrary from the plaintiff, the policy would loe renewed upon its expiration. The plaintiff gave no direction that the policy shonld not be renewed, but after the receipt of that notice, and before the 20th of December, 1894, when the old policy expired, the plaintiff’s husband, who- had charge of the business for her and as her agent, met one of the Hortons, the defendant’s agent, upon the street, and Horton asked him.if he- wished the insurance renewed (referring to the insurance in question). The husband told Horton that he did, whereupon Horton said, “ All right, try and not let the premium run longer than thirty days.” Horton said he would issue the policy, and the plaintiff’s husband was to call at Horton’s office and get it. The policy was not, in fact, issued, but the -plaintiff made no further efforts to insure her property, relying upon the arrangement for the renewal; that is, the evidence of the plaintiff tended to prove that fact.
    A fire occurred on the 29th of December, 1894, destroying the property of the insured. The insured made proofs of loss and forwarded them to the defendant, but the defendant gave notice disclaiming all responsibility in the matter, and refused to pay the loss. The plaintiff brought an action against the defendant to recover this loss, alleging substantially the facts above recited. The defendant answered and the action was tried in Chautauqua county in October, 1896, and. the plaintiff recovered a verdict for $653.50, whereupon the defendant moved for a new trial Upon the minutes, which was denied, and the defendant appeals from the judgment, and from the order denying the motion for a new trial, to this court.
    
      Horace McQuvre, for the appellant.
    
      A. O. Wade, for the respondent.
   Ward, J.:

The appellant alleges two errors upon this review:

First, that the plaintiff did not establish her case by a fair preponderance of the evidence.
Second, that Horton Brothers were not authorized to make verbal contracts of insurance, and that the alleged .contract, if made, was outside of the scope of their authority.

The case was fairly tried and properly submitted to the jury, and there was evidence to sustain the plaintiff’s contention upon the questions of fact sufficient to go to the jury, and their verdict will not be disturbed upon those questions.

It is true that the defendant’s agents denied having the conversation as to the renewal of the insurance testified to by the plaintiff’s husband, but there were circumstances established in the case which tended to confirm the statement of the husband and weaken that of the agent. The written notice as to the renewal of the policy was not denied by the defendant’s witnesses and stands an admitted fact in the case.

. The remaining question is as to the authority .of the defendant’s agents to renew the insurance or to make a new contract of insurance upon the same terms and conditions as the first. By the arrangement as found by the jury, the second insurance for a year was to be precisely like the first in every respect; whether we call the transaction a renewal of the former policy, or an agreement for a new policy- to run the same length of time as the first and upon the same terms, the substance of the transaction is the same. The power of the agent was two-fold, to issue new policies and to renew old ones, and upon the question of authority it is unimportant whether this was a contract to renew or a contract for a new policy. It was equally within the powers of the defendant’s agents.

We know, as a matter of common practice, that these agents renew policies upon an arrangement with the insured to do so and with the tacit consent' of the insurance companies.

The power of insurance agents clothed with the authority that the Hortons were, in this case, to make a parol contract of insurance, to be consummated by a policy to be issued thereafter, or to make a parol contract of insurance^ has long been established in the jurisprudence of this State, and payment of premium at the time is not necessary to make the contract binding upon the company ; if a credit be given by the agent it is equally obligatory, and in the case of a preliminary contract to issue a policy the recovery of the amount agreed to be insured is proper damages for the breach of' such contract. (Angell v. Hartford Fire Ins. Co., 59 N. Y. 171; Ellis v. Albany City Fire Ins. Co., 50 id. 402; Ludwig v. The Jersey City Ins. Co., 48 id. 382; Trustees of the First Baptist Church v. The Brooklyn Fire Ins. Co., 19 id. 305 ; Audubon, Executrix, v. The Excelsior Ins. Co., 27 id. 216; Post v. Ætna Ins. Co., 43 Barb. 351; Church v. La Fayette Fire Ins. Co., 66 N. Y. 222; Reynolds v. Westchester Fire Ins. Co., 8 App. Div. 193; Ruggles v. American Central Insurance Co. of St. Louis, 114 N. Y. 415; Hicks v. The British American Insurance Co., 13 App. Div. 444; Van Tassel v. Greenwich Ins. Co., 151 N. Y. 130; Manchester v. Guardian Ass. Co., Id. 88.)

The plaintiff having relied upon the arrangement made with the agent of the defendant to continue the insurance, the premium to be paid thereafter, they having the apparent authority to make such an arrangement, the defendant is in equity estopped from asserting the want of power in'the agents to make the contract. (Manchester v. Guardian Ass. Co., 151 N. Y. 92, and cases there cited.)

The learned counsel for the defendant seems to rely upon Shank v. Glens Falls Ins. Co. (4 App. Div. 516). An examination of that case discloses but little resemblance between it and the case at bar, and it does not apply.

The judgment and order appealed from should be affirmed, with costs.

All concurred.

.Judgment- and order affirmed, with Costs.  