
    
      BRADEN vs. LOUISIANA STATE INSURANCE COMPANY.
    
    Where the agent effects insurance on account of his principal, and the policy contains a clause, that in the event of loss,payment is tobe made to the agent, the promise must be understood to be made in his representative character, and not in his own right.
    
    A debt due by the agent, cannot be offered in compensation of that which is owing by the principal.
    Appeal from the court of the first district.
    C This suit was brought on a policy of insurance, to recover from the defendants one thousand six hundred and six dollars and thirty-four cents, being the adjusted loss on a quantity of cotton, damaged by the perils insured against.
    The policy was effected by Fisher, Burke & Watson, on account of the plaintiff, who was owner of the cotton. The only question in the case, arose on a clause in the policy to this effect. “In the event of loss, payment to be made to Fisher, Burke & Watson.” The de-fence set up was, that the payment was to be made to the agents, and that these agents were indebted to the defendants in a larger sum than that claimed in the petition.
    
      Eustis for appellant.
    
      Morse for appellee.
   Porter, J.

. delivered the opinion of the court. The petition alleges, “that on the 20th day of April, 1829, the defendants subscribed a policy of insurance for the sum of four thousand eight hundred dollars, on a quantity of cotton, the property of the plaintiff on a voyage from Elk river to the port of New-Orleans, which policy was subscribed on the application of Fisher, Burke &, Watson, the agents and factors of the petitioners.”

The contract states that, “Fisher, Burke So Watson, on account of P. H. Braden, doth make insurance, and cause to be insured, So c. &c.”

At the close of the instrument, the following clause is inserted: “In case of loss, the amount to be paid to Fisher, Burke Watson.”

The property shipped, having sustained loss by the perils insured against, to the amount of one thousand six hundred and six dollars and thirty-foul* cents, this action is brought to recover from the defendants that sum. They resist it on the ground, that the payment was to be made to the agents, and that these agents are indebted to the defendants in a larger amount than that claimed by the petitioner.

gent Effects8 ini count°of iris prin-n'cy1, con tain °a clause that, in the event of loss, made¡e to 'the at gent, the promise must be under-made in his chametof^tnd right!" h S °Wn

A debt due by the agent cannot be offered in compensation of that which is owing to the principal.

The court below refused to sanction this defence, and gave judgment for the plaintiff, deducting, the amount of the premium, and p0|jCy ingurance. The defendant appealed,

We think, with the court below, that the promise to pay Fisher, Burke & Watson, in case of loss, must be understood to have been , , ... . .. , made to them in their representative character, and not in their own right. It cannot be . . . . . ¡.,, presumed it was the intention ot the parties, the plaintiff should bear all the burthen of the contract, and not enjoy any of its benefits, Considered in this light, the authority of the agents to receive the money, might be revoked at any time before payment, and the pay-J ment has not yet been made. A debt due by J the agent, cannot be offered in compensation of that which Í3 owing to the principal.

This view of the subject renders it unnecessary to enquire, whether an agent can in any case, where he contracts as such, insert in the agreement stipulations in his own favor, in relation to the matter which forms the object of his agency. We have considerable doubts of it. It is somewhat difficult to Understand, how he can by a contract acquire a right for another, and in virtue of his having done so, stipulate that such a right shall inure . • i „ _ , . , to his own benefit. In doing so, he does not act as agent, for a man cannot at one and the same time, be agent and principal. The in-lervention, either of the person whose rights he acquired, or some other representing him, would seem necessary to the validity of such a contract. But it is unnecessary to pronounce a positive opinion on this point.

There was no novation of the debt due for the premium, and the court below decided correctly in deducting it.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be affirmed with costs.  