
    The Washington Life Insurance Company, Plaintiff, v. Blair T. Scott, Defendant.
    (Supreme Court, New York Trial Term,
    January, 1908.)
    Principal and agent — Mutual rights, duties and liabilities — Construction and execution of contract, etc.— Liability of agent for conversion of fund.
    Where the complaint of a domestic life insurance company, in an action brought under section 549(2) of the Code of Civil Procedure, alleges the making of a contract of employment with defendant as its general agent for the purpose of effecting insurance in three other States and to collect and promptly pay over to plaintiff all premiums, and alleges the renewal and termination of said contract, and also alleges that between the date of the last renewal and the termination of the contract defendant, in the course of liis said employment and in a fiduciary capacity, had and received to plaintiff’s use certain moneys exceeding in the aggregate $5,000 whicli he had collected in premiums of plaintiff’s policy holders and, upon demand, had never paid over or delivered to plaintiff but, in violation of his trust, had/converted to his own use; and where defendant by Ms answer, admitting the making of the agreement, alleges, in substance, that it was so modified and the provisions thereof so waived by plaintiff as to destroy the fiduciary relation contemplated by the agreement and to create the ordinary relation of debtor and creditor; and the testimony shows that, notwithstanding departures from the requirements of the original contract known and acquiesced in hy plaintiff at the time of each renewal of defendant’s agency, all moneys received by him as general agent were deposited in a bank, approved by the. plaintiff, in defendant’s name as general manager,” drafts upon which were made hy checks bearing upon their face the name of the plaintiff and signed by either the defendant as “ general, manager ” or by his brother as “ agency director,” and all drafts were made only for disbursements in connection with plaintiff’s business, the plaintiff is entitled to judgment for the difference between the amount of premiums collected and defendant’s disbursements ratified by plaintiff, together with interest from the date of the ratification of his agency.
    Although the original contract appointing the defendant the plaintiff’s agent did not show upon its face where it was executed, the presumption, in the absence of evidence to the contrary, was that it was executed by plaintiff within the State of New York.
    Defendant’s obligation and legal status were fixed by the manner in which he received the money sued for and by the fact that he was obliged to remit when requested; and his refusal to pay over, upon demand, said balance constituted a conversion, whether section 38 of the New York Insurance Law which provides that “ Every person appointed or acting in this state as agent of any insurance corporation, who receives or collects any moneys as such agent, shall be responsible in a trust or fiduciary capacity to sucli corporation therefor,” was applicable or not.
    Jurisdiction of the person of the defendant having been acquired by personal service within this State, plaintiff was entitled to avail itself of the remedy provided by section 549(2) of the Code of Civil Procedure, whether the conversion occurred in this State or elsewhere.
    The acceptance of the checks by plaintiff was not a waiver of its right to arrest the defendant, nor did it operate to convert its claim into one of simple debt.
    . Action for money had and received to plaintiff’s use which, after demand, was converted hy defendant to" his own use.
    Samuel B. Clarke, for plaintiff.
    Ellison, MacIntyre & Davis, for defendant.
   Brady, J.

The plaintiff is a corporation fprmed under the laws of the State of Hew York. On or about the 13th day of May, 1901, the plaintiff and defendant entered into an agreement in writing, signed hy both, wherein and whereby the said company appointed the defendant its general agent for the purpose of procuring applications for life insurance, and effecting such insurance as should be satisfactory to the company, and for the purpose of collecting and, promptly paying over to the company as its representative all premiums when collected, and of otherwise performing such duties in connection with the business of said agency as might he required of him hy the officers of the company. The agreement further provided that the said agent should act exclusively for said company and devote his entire time, talents and energies to the business of the agency, and in the conducting of which he should he governed by the instructions given him from time to time by the officers of said company. The compensation of the agent was to be commissions on premiums paid to the company. The district to which said general agency was assigned comprised the States of Oregon, Washington and Idaho. The agreement further provided that the fee of the medical examiner should not be paid hy the agent, hut by the company direct from the home office, and that advertising should not be done at the expense of the company. Provision was also made that the agent should remit to the company on Monday of each week the entire amount collected during the preceding week, and that an account sent hy the company to the agent each month should be returned by him to the company within the first five days of the succeeding month as his own monthly statement. It was also provided that all moneys received for premiums or otherwise under said agency were a fiduciary trust, and should not be used for any other purpose whatsoever, but should he immediately deposited in a bank to he approved by the company in the name of “ Blair T. Scott,” as general agent of the Washington Life Insurance Company, and not otherwise, and should be remitted weekly. Provision was made for other details not of importance to consider here, and that either party might terminate the contract on thirty days’ notice, and that the company might terminate it at any time- for good cause. The agreement also provided that the company would pay the agent a salary of $208.33 per month for one year from Hay 1, 1901, based upon the paying for $800,000 of insurance written and paid for within one year from that date, and, if he failed to write that amount of insurance within said year, then the salary paid him should be charged against any commissions due him. The company also agreed to allow him, upon- his submitting proper itemized vouchers, traveling expenses not to exceed $75 per month, office expenses at Portland and Seattle, $83.33 per month, and certain other expenses, $187.50 per month. This agreement was admitted in evidence and marked “ Plaintiff’s Exhibit A.” The defendant accepted the agency referred to in said agreement and proceeded to represent the plaintiff thereunder. He continued to act as general agent for the plaintiff in the aforesaid States until Harch 3, 1905, when such agency was revoked by the plaintiff by written notice to that effect given more than thirty days prior thereto. In the meantime the agency had been continued from year to year by letter from plaintiff to defendant, and on the 26th day of May, 1904, the plaintiff appointed the defendant its superintendent of agencies for the entire United States. This appointment was supplementary to the general agency already held by him. The letter making such appointment was admitted in evidence and marked “ Defendant’s Exhibit Ho. 1.” It appears therefrom that the defendant was to he paid a salary of $7,500 per annum from June 1, 1904, in monthly installments at the end of each month, which he was authorized to charge in bis account as general agent if he so desired. The company therein also agreed to pay the defendant’s necessary traveling expenses upon proper vouchers therefor. The complaint alleges the making of the contract of agency and its renewal and termination, and avers that between Hay 1, 1904, the date of the last renewal, and Harch 3, 1905, the date of the termination thereof, the defendant in the course of his employment aforesaid and in a fiduciary capacity had and received to the use of the plaintiff certain moneys exceeding the aggregate amount of $5,000, which he as plaintiff’s agent had collected from holders of policies issued by plaintiff for premiums due thereon; that said moneys so had and received, though demanded, have never been paid over or delivered by the defendant to the plaintiff, but that the same have been by the defendant wrongfully and in violation of his trust converted by defendant to his own use. Judgment is demanded for $5,000 and such additional amount as -may be established to have been had and received by defendant to plaintiff’s use as aforesaid, with interest and costs. The action is brought under subdivision 2 of section 549 of the Code, and an order of arrest was obtained and the defendant arrested. The defendant by his amended answer admits the making of the agreement as alleged in the complaint, but alleges that the same was so modified by the acts and customs of the parties, and the provisions thereof so waived by the plaintiff, as to alter the, relations between the parties to such a degree as to destroy the fiduciary relation apparently contemplated by the text of the agreement, and to create the ordinary relation of debtor and creditor and destroy the elements upon which the plaintiff based its action. He further contends that thti several renewals made after the expiration of each succeeding year subsequently to the making of the original contract were of the contract as so modified.. The uncontradicted testimony shows that almost from the beginning of his agency as fixed by the original contract his manner of procedure differed ividely from that pnmded by the contract, and such deviation was Avith the knowledge and assent of the plaintiff. The provision requiring him to devote his entire time, talents, and energy to the business of plaintiff’s agency Avas waived by the plaintiff, as instanced by its appointment of him on May 26, 1904, as its superintendent of agencies, the duties of 'which position Avould necessarily require much of his time. The provision requiring defendant to deposit all moneys received by him as such agent in a bank to be approved by the plaintiff in the name of Blair T. Scott,, as general agent of the Washington Life Insurance Company, and to remit the same Aveekly to the plaintiff, was not strictly complied with. Remittances were not made Aveekly as required by the contract and, when made, Avere not of all moneys received, but of balances which remained after deductions made by the defendant for commissions, salaries, office expenses and many other items, and were accompanied by reports showing these deductions and showing also at times on the debit side amounts charged against the defendant for premiums not yet actually received by him, and which amounts were reimbursed by the plaintiff. -All these departures from the requirements of the original contract were known to and acquiesced in by the plaintiff at the time of each renewal of the agency. The moneys received by the defendant as general agent of "the plaintiff were, however, deposited by him in a bank approved by the plaintiff in his name as general manager,” drafts upon which were made by checks bearing upon their face the name of the Washington Life Insurance Company, and signed by either the defendant as “ general manager or by his brother as agency director,” and such drafts were made only for disbursements in connection with plaintiff’s business. In February, 1905, the defendant delivered to the plaintiff four reports of premiums collected by the defendant, dated respectively February G, February 10, February 14 and February 16, and at the same time gave checks signed by Blair T. Scott, general manager, to the order of the president of the plaintiff company for $1,058.89, $1,838.98, $862.31 and $1,126.13 respectively, and drawn upon the First ¡National Bank, Portland, Ore., aggregating $5,486.31, the sum of the balances shown by said reports. Payment of these checks by the bank "was stopped by the defendant. It is contended by the plaintiff, and perhaps proven, that the defendant’s account was overdrawn when each of these checks, except the first, was presented for payment. Upon the trial the defendant moved to dismiss the complaint upon ten separate grounds, viz.: first, that it was not shown that the defendant received the money in a fiduciary capacity; or, second, retained it in a fiduciary capacity; or, third, converted it to his own use; fourth, that the rights of the parties depend on the law of Oregon, which has not been proved; fifth, that section 38 of the Hew York Insurance Law does not apply; sixth, that the acceptance of the defendant’s checks waived the right of arrest and converted plaintiff’s claim into one of simple-debt; seventh, that the proof shows simply the relation of debtor and creditor between the parties; eighth, that the plaintiff waived the provisions of the contract requiring the moneys to be deposited by the defendant in his own name as agent of the plaintiff; ninth, that plaintiff waived the provisions of the contract requiring the defendant to account for or pay over the identical premiums received by him, and tenth, that it was not shown that defendant converted moneys belonging to plaintiff or to which it was entitled, and the evidence that the agency director had power to draw checks on the funds makes the proof insufficient to support the action. I am of ■ the opinion that the four reports made to plaintiff by the • defendant, dated February 6, 10, 14 and 16, 1905, show sufficiently that the defendant as agent received during the period mentioned in the complaint moneys of the plaintiff consisting of insurance premiums amounting in the aggregate to $15,615.36, of which, after deducting disbursements made by defendant and ratified by plaintiff, a balance remained of $5,486.31, to which the fiduciary responsibility still clung as well as to the original amounts received. While the moneys received by the defendant were not deposited in the precise manner provided by the contract, they were, nevertheless, made the subject of a separate deposit in a bank approved by the plaintiff in the name of the defendant as “ general manager,” and the checks drawn against such deposits showed upon their face the interest therein of the. plaintiff; nor does the fact that the defendant’s brother had the power to draw upon such deposits in the capacity of “ director ” affect the case any more than if the deposit had been of cash or currency in a box or safe to which said brother had a right of access given him by the defendant. Drafts, whether made by the defendant or his brother, were made only for the purpose of plaintiff’s business, and the deposit was maintained for plaintiff’s business exclusively. While the plaintiff waived the provisions of the contract requiring weekly remittances, notwithstanding the fact that remittances had been made with more or less regularity and all, so far as appears, by drafts against these special deposits, such waiver does not affect the fiduciary relationship of the defendant any more than the same could have been affected if the contract had in terms permitted the defendant to remit at his discretion either weekly, monthly or at irregular intervals. His obligation and legal status were fixed by the manner in which he received the moneys and by the fact that he was obliged to remit when requested. His refusal to pay over the balance constituted a conversion. Section 38 of the Hew York Insurance Law provides as follows: “ Every person appointed or acting in this state as agent of any insurance corporation, who receives or collects any moneys as such agent, shall be responsible in a trust or fiduciary capacity to such corporation therefor.” The plaintiff is a Hew York corporation, and although the original contract appointing the defendant its agent does not show upon its face where it was executed, nor is there any evidence of the place of execution, I think it can be presumed that it was executed at least by the plaintiff within the State of Hew York, and as it in terms appoints the defendant general agent of the plaintiff, it follows that he was then appointed in this State. But whether section 38 aforesaid applies or not, the fiduciary relationship of the parties was fixed by the contract itself and the defendant assumed in words a fiduciary responsibility. Section 549 of the Code provides a remedy, and where the court acquires jurisdiction of the person of the defendant by personal service within the State plaintiff is entitled tc avail itself of that remedy in' an action to recover upon a tort specified in that section, whether such tort occurred in this State or elsewhere. Brown v. Ashbough, 40 How. Pr. 226. The acceptance of the checks by the plaintiff did not operate as a waiver of its right to arrest the defendant, nor convert its claim into one of simple debt. The checks were simply orders upon plaintiff’s own funds deposited in bank to the credit of defendant as its general manager, and payment of these orders was stopped by the drawer. The plaintiff is entitled to judgment for the sum of $5,486.31, with interest from March 3, 1905.

Judgment for plaintiff.  