
    Alman Miller & Co. v. The Phœnix Insurance Co.
    1- Insurance: power or agents. A local agent of a foreign insurance company authorized to effect contracts of insurance, and conduct the business at his agency, is to be considered a general agent, and competent to bind his company by acts which are within the scope of the general authority he possesses, though in violation of limitations upon that authority not brought home to the knowledge of the assured.
    2. - agent’s power to accept orders : evidence. Whether such' agent has power to bind the company in case of a loss, and before settlement thereof, by the acceptance of an order drawn by the assured in favor of a creditor, quere.
    
    3. - But, if not, such powers could be implied from such acts on the part of the company as would induce the public to believe that such power had been conferred. So, too, his acts in this respect might, in a like manner, be subsequently ratified, and the company thus estopped from denying their validity; and evidence of acts tending to show such authority or ratification is admissible.
    
      Appeal from, Cedar District Court.
    
    Wednesday, June 9.
    Action at law. — The petition avers substantially, that one Fassett, being indebted to plaintiffs, and having susi tained a loss upon a policy of insurance issued to him by the defendant, made his certain order upon defendant in words following:
    “ $1,263.38.
    “ To the Phcenix Insurance company, of Hartford, Conn.: Please pay to the order of Alman Miller & Co., ..of New York city, the | sum of one thousand two hun- ... idred and sixty-three and T\\ dollars out of any money * -.that may be due me for damages by reason of the loss by '‘7.-’fu’e of my stock of goods at Clarence, Cedar county, Iowa, insured for the sum of six thousand dollars, in said -W. Phcenix Insurance company, by policy No. 2,258, issued at the Tipton agency.
    “ This order being given in payment of goods sold me by said firm, and now remaing unpaid.
    “(Signed) O. P. FASSETT.
    “ In presence of Wells Spicer.”
    (II. S. Revenue Stamp, 65 cts. canceled.)
    The defendant, by its agent; accepted this order by indorsement thereon in words following :
    “The within order was presented to me on the 12th day of August, A. H. 1865,'and accepted by me, as agent éf the Phcenix Insurance company, to be paid out of | any moneys to become due to Fassett when said loss shall be adjusted.
    “ (Signed) WELLS SPICER,
    “ Agent Plmnix Insurance Oornpwnyl
    
    The petition alleges that the policy covered loss to the amount of $6,000, and that the property insured exceeded in value that sum, and at the date of the acceptance of the order the loss had not been adjusted.
    The defendant by its answer denies its liability upon said order and acceptance by reason of the want of authority of Spicer to accept the order, which was done without the knowledge or consent of defendant, and with a fraudulent intent as to defendant’s rights in the premises. Both the petition and answer contain many averments of facts in the nature of evidence. No mention need be made of them. The cause was submitted to the court without a jury. Judgment for defendant.
    Plaintiffs appeal.
    
      Wolf <& Zandt and H. O' Oonnor for the. appellant.
    
      GooJc <& Drury for the appellee.
   Beck, J.

The errors assigned upon the record relate to the exclusion of certain evidence offered by plaintiffs. The questions arising thereon need only be . T n considered.

The plaintiffs introduced as a witness Wells Spicer, who testified that he was, during the time of the transactions set out in the petition, the local or resident agent of defendant, at Tipton, where the insurance was effected, and, as such agent, issued the policy. His commission as agent was introduced in evidence. It empowers him “to receive proposals for insurance against loss or damage by fire, and to make insurance by policies of the-said Phoenix Insurance Company, to be countersigned by the said Wells Spicer, Esq., agent, and to renew the same; to assent to assignments or transfers, and to do all matters and things pertaining to said appointment that shall be given him in charge by said company or its general agent at Cincinnati, 0.”

The plaintiffs offered to introduce in evidence certain printed circulars issued by the defendant for the purposes of advertisements.

One of them purported to be signed by “Wells Spicer, Tipton, Iowa, resident agent,” and, as one of the inducements for the public to do business with him, stated that losses under policies issued at his agency would be paid through him.

The other circular has the name of no agent, the blank therefor not being filled, and states that “ losses will be paid at this agency in bankable funds.”

The plaintiffs proposed to prove that these circulars were received from defendant. Plaintiffs also offered in evidence a letter from the general agent of defendant at Cincinnati, Ohio, to Wells Spicer, the local agent, acknowledging the receijit of the order sued on, but returning it according to Spicer’s request This letter states that defendant 'had been garnished by certain creditors of Fassett; that such garnishments must be legally removed before defendant can take action in the premises, and as soon as they are removed “it will” (in the language of the letter) “give us pleasure to deal directly with Mr. Fassett,” etc. The letter proceeds as follows : “Welch and Shipman, attorneys, sued the Phamix and enjoined us, or, rather, they brought joint suit against Fassett and the Phosnix. If you can satisfy them that their client’s claim will be protected through you, they will doubtless release us and enable us to act and deal directly with Fassett in the matter of the loss and adjustment, but the garnishees must be released.” This letter was dated August 18, 1865. No objection is made in this letter to the act of Spicer in accepting the order.

Plaintiffs offered in evidence anothei^ letter of the general agent of the company to Spicer, dated December 28, 1865, directing him to settle with Fassett by payment to him of $4,500, and no more. This letter covered a blank draft, to be signed by the agent Spicer upon the general agent, and an original duplicate and triplicate receipt, to be signed by Fassett upon payment to him of the sum aforesaid.

No allusion is made in this letter to the order accepted by Spicer. The court refused to admit -in evidence the aforesaid circulars and letters and the facts above stated in connection therewith, “unless,” in the language of the record, “ the plaintiffs would show the authority of said Spicer to accept the said order.”

The ruling of the court thus excluding the evidence is erroneous.

This court has held, following a strong current of authorities, that agents of insurance companies, empowered as the agent of defendant, are to be considered general agents, and corporations represented by them are bound by their acts which are within the scope of the general authority they possess, though in violation of limitation upon that authority not brought home to the knowledge of the party dealing with them. Viele v. Germania Ins. Co., 26 Iowa, 9; Keenan v. Mo. St. Mut. Ins. Co., 12 id. 126.

Whether the payment of losses by acceptance of bills or orders is within the scope of the authority of a general agent, we need not now consider. If not, it was competent for defendant to confer that power by special appointment or instructions, and it doubtless could so act as to induce the public to believe that such power had been conferred.

IJnder such circumstances it would be estopped to deny that such power was possessed by its agents; and the defendant could so act after the exercise of such power by the agent as to adopt and ratify his acts, and thus preclude itself from denying them. The circulars, letters, and other evidence excluded, seem to us pertinent evidence in this view of the case, and proper to be admitted and considered in determining the question of the agent’s power to accept the order and thus bind defendant.

Reversed.  