
    Prescentia Angell, Respondent, v. The Hartford Fire Insurance Company, Appellant.
    (Argued November 20, 1874;
    decided December 1, 1874.)
    An agent of a fire insurance company, authorized to negotiate contracts of insurance and to fill up and deliver policies executed in blank and left with him for that purpose, has authority to make a parol preliminary contract to issue a policy.
    Payment of the 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.
    The recovery of the amount agreed to be insured is proper, as damages for the breach of such a contract.
    
      Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, affirming a judgment in favor of plaintiff, entered upon a verdict.
    This action was brought upon an alleged parol contract to insure and to issue a policy, made by one Carpenter, as agent of defendant. Plaintiff’s evidence tended to show that Carpenter was agent of defendant, had authority to negotiate contracts of insurance, agree upon all ,the terms, and to fill up and deliver policies, he being furnished for that purpose with policies executed in blank by defendant’s president and secretary. That on the 23d November, 1871, he made an agreement with plaintiff to insure the building of the latter for the sum of $1,000 for three years, the premium to be “ what the property was rated at,” which was thirty dollars, and to make out and deliver to plaintiff a policy in accordance with such agreement at which time the premium was to be paid. No policy was delivered or made out as agreed, and on "the 13th January, 1872, the building was consumed by fire. Thereafter plaintiff tendered to said agent the premium, who declined to receive it.
    
      F. W. Hubbard for the appellant.
    An oral agreement made by a local agent, unaccompanied- by the payment of premium or any writing, is not a valid contract of insurance. (Ellis v. Alb. City Fire Ins. Co., 50 N. Y., 402, 406, 408; 4 Lans., 453; Rhodes v. Rail. Pass. Ins. Co., 5 id., 71; Bapt. Ch. v. Bklyn. Ins. Co., 28 N. Y., 153.) The action cannot be maintained in its present form; it should have been for a specific performance of the agreement for a policy to be issued, or for a breach of the agreement in not issuing the policy. (19 How. [U. S.], 318; 4 Sandf. Ch., 408; 4 Cow., 645.)
    
      A. E. Kilby for the respondent.
    The proof shows a valid contract of insurance. (Audubon v. Ex. Ins. Co., 27 N. Y., 216, 223.) The contract was not void by the statute of frauds. (Fish v. Cotterel, 44 N. Y., 538; Bapt. Ch. v. Bklyn. F. Ins. Co., 19 id., 305; Dresser v. Dresser, 48 Barb., 330, affirmed in Court of Appeals.) It was not necessary that a policy should be issued to maintain this action; the agent had the right tó waive the conditions of the policy. (19 N. Y., 305; 44 id., 538; Ellis v. Alb. Ins. Co., 4 Lans., 433; 27 N. Y., 216, 223, 224; 5 Lans., 71; 28 N.Y., 153.) The notice and proofs of loss were sufficient and were properly put in evidence. (17 N. Y., 428; 12 id., 81; 3 id., 122; 2 id., 53.) Plaintiff had a right to assume that the agent was authorized to insure his building. (23 Wend., 260, 266; 4 Lans., 433; 15 J. R., 45; 5 Lans., 71; Story on Ag., § 73; Redf. ed., § 133, note 2; Paley on Ag., 200, 201.)
   Grover, J.

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The counsel for the appellant is mistaken in supposing that the action was based upon a parol contract of insurance for three years. There was not sufficient evidence to show that Carpenter was authorized to make such a contract by the defendant. It was alleged in the complaint, and the testimony tended to prove, that a preliminary contract was made by which it was agreed that the defendant should insure the plaintiff upon the property against damage by fire for a sum and at a rate agreed upon for the term of three years from the time of making the contract, and that a policy of insurance should shortly thereafter be made out to take effect from that time and delivered to the plaintiff by Carpenter, at which time it was agreed the premium should be paid. It was proved that Carpenter was the agent of the defendant, with authority to negotiate contracts of insurance in its behalf, agree upon the rate of premium, the term of insurance, and, in short, to agree upon all the terms of the contract. That he was furnished with policies executed in blank by the president and secretary of the defendant, with authority to fill up and deliver the same to any party with whom he made a contract. This authorized him to make a preliminary contract, binding upon the defendant, to be consummated by filling up and delivering a policy pursuant thereto. The case comes directly within the principle upon which Ellis v. The Albany City Fire Insurance Company (50 N. Y., 402) was decided by this court. The question whether such an agent was authorized to bind his principal by such a contract was fully considered in that case. The only distinction between that and the present is, that in that ease the premium was paid to the agent at the time of making the contract and had been paid to the company, while in this credit was given therefor until the policy should be delivered. This has no effect upon the validity of the contract. (Trustees, etc., v. The Brooklyn Fire Ins. Co., 19 N. Y., 305; Audubon v. The Excelsior Ins. Co., 27 id., 216.)

A recovery of the amount insured was proper in the action for the breach of the contract. (Ellis v. The Albany Fire Ins. Co., and cases cited, supra.)

The private instructions given by the defendant to Carpenter, by which he was to regulate his conduct in the transaction of the business, were not known to the plaintiff or her agent, and could not therefore affect 'the rights of the parties.

The point that the contract was within the statute of frauds was not'insisted upon in this court.

The judgment appealed from must be affirmed, with costs.

All concur, except Allen and Bapallo, JJ., not voting.

Judgment-affirmed. 
      
       The forepart of the opinion Is taken np with a discussion of questions of evidence not deemed necessary to he reported.
     