
    James Bunten, Plaintiff and Respondent, v. The Orient Mutual Insurance Company, Appellants.
    1. Where, on the trial of a cause, the jury are instructed in respect to the rule of law which they are to apply, as requested by the defendants, and a verdict passes against them, and they move for a new trial on the ground that the verdict is contrary to evidence; the defendants have a right on such motion, for all the purposes of the motion itself, to insist that such instruction is correct.
    2. If, on a fair application of the rule, as charged, the verdict is contrary to evidence, it will be set aside and a new trial be granted.
    3. In such a case, it is erroneous to refuse a new trial, on the ground that the plaintiff has some equity disclosed by the evidence which entitles him to retain the verdict; especially when the pleadings neither intimate its nature or existence, nor an intention to assert and enforce it.
    4. Where the question is whether an agent, (not having, by the papers which created him such agent and defined his powers, any authority to alter a policy which had been issued by his.principal,) “was permitted to alter policies in respect to dates of sailing, from time to time, so that that became the customary usage and course of business;” the evidence must show, in order to bind the principal, at least- several cases in which the agent, without asking the sanction of his acts by the principal, had made alterations of a like nature on which the principal had acted, and in which he had acquiesced when such alterations came to his knowledge; or it must tend to prove that although communicated by the agent they were acquiesced in, as acts which he was competent to perform, and as binding on his principal; or that he was held out to the public as authorized, to do such acts.
    (Before Bosworth, Ch. J.,, and Slosson and Woodruff, J. J.)
    Heard, October 22d, 1858;
    decided, February 26, 1859.
    
      This is an appeal by the defendants from an order made by Mr. Justice Hoffman", denying a motion for a new trial, made upon the ground that the verdict in favor of the plaintiff was against the weight of evidence.
    ■ The main facts from which the controversy arises are as follows:
    The defendants, a Marine Insurance Company in Hew York, employed McLimont as their agent in Quebec, under a letter of authority dated December 14th, 1854.
    The agent, McLimont, did not issue policies to parties ; they were always issued "by the Company, in Hew York, upon his returns of risks agreed to by him.
    The plaintiff, in the first week of October, 1855, made an application in writing to McLimont for insurance on the cargo of the Azoff, to which he agreed, and the material parts of which were transmitted by him, on the 16th of October, to the Company.
    The plaintiff’s agent testified that he then stated to McLimont that the ship would be likely to get away by the 10th, but that he was not certain to a day; that McLimont agreed to the insurance, the ship to sail at any time before Hovember, and that the premium would be charged according to the standard. And that on the 11th of October he instructed McLimont to have the policy specify the 15th of October as the day of sailing.
    On 20th October 1855, a policy in accordance with the “ return ” of -the risk was forwarded to the agent of the Company.
    The policy was received by the agent on the 23d or 24th of October, and sent by him to plaintiff; the same day the policy was received, the latter called upon the agent, requesting'him to alter the date of" sailing, which the agent did, by changing that date from the 10th .to the 15th of October, 1855.
    The policy, as issued, contained a warranty that the vessel should sail on the 10th of October. This warranty was changed to the 15th of October, in the manner above stated. The defendants insist that' it was so changed without their sanction or knowledge. The vessel did not sail until after the 10th of October.
    . The extension beyond the 10th of October, required an additional premium of one per cent, and this was known to the plaintiff.
    Ho alteration was made in the premium in the policy, which remained at three, per cent.'
    
      The cargo insured was totally lost October 29th, 1855. The defendants refused to receive any premium on this risk, when the returns of premiums received by the agent were made by him to them in the fall of 1855, after the loss was known.
    It appeared that John Dean, one of and in behalf of the firm of Dean & Co., applied in Eew York to the defendants, on the 21st of September, 1855,' for a policy on the hull of the Azoff. A policy was then agreed to be issued for $5,000 on her hull, and the day of her sailing was left in blank on the margin of the application, to be filled when that fact was ascertained, and the premium to be paid was to be according to the risk, as affected by the time of sailing, in accordance with the established rates of the Company. The insurance was to be void unless the vessel sailed before the 10th of Eovember. Mr. Dean testified, that “ on the 21st of October, I think, and certainly before the 24th, I called upon Mr. Ogden (the Vice-President), and told him that the vessel went to sea on the 15th, and I think he marked it on the application, and the policy was then made out and delivered.”
    It appeared that Charles Irving, the Secretary of the Company, conducted the correspondence with McLimont, the agent, in •respect to issuing the policy on the risk taken by him, and did not know that Mr. Dean had told any officer of the 'Company on what day the vessel sailed.
    Some details of evidence are stated in the opinion of the Court, delivered at General Term. .
    . The action was tried before Mr. Justice Woodruff and a jury, on the 21st of January, 1858. He charged the jury as follows:
    “I do not understand that there is any controversy between the counsel for these parties as to rules of law. It is true that a material alteration, without the sanction of the Company or their agent, avoids it; and if it was altered without authority, then the defendants are not bound by the policy; and I charge you now, as a matter of law, that an alteration of the date of sailing in this policy, was a material alteration.
    “ The inquiry, then, is, whether this Company or their authorized agent did insure this plaintiff under the policy as altered. It appears, by the deposition of McLimont, that oh the 14th of December, 1854, the defendants gave to McLimont their letter of authority to act for them in Quebec. '
    “ It further appears that he acted under this letter. In this condition of things, it seems that the Company complained that he exceeded his instructions, and this led to the letter of the 22d February, 1855.
    “ If the case stood upon that alone, it would be a restriction of the original authority; but McLimont states that he came to New York, and that this restriction was withdrawn. The Vice-President says that this last letter was not withdrawn; McLimont says that it was revoked; but McLimont goes further, and says that the revocation was made clear by the letter of the 7th of July, 1855. Under the letters and instructions produced, the agent, McLimont, had authority to bind the defendants by a contract to insure in October, 1855. The tariff of rates was sub-, mitted to Bunten. He testifies that he then expected the vessel would sail on the 10th, but could not tell on what precise day she would be ready. McLimont does not, I think, negative the idea that Bunten told him this. Now if the agent had authority, before' the 10th day of October, to bind the defendants, by an agreement to insure, with a warranty to sail on the 10th, then he had authority to bind them by such an agreement on the 11th, with a warranty to sail on the 15th; and had the plaintiff come here relying on a contract .of that kind, the Court would have held them, and, if necessary, would have required them to execute a policy in conformity with such a contract. But the plaintiff comes here with another case. His complaint is upon the policy itself as altered. It appears that the agent altered the policy which, the Company issued, by changing the date of sailing. The plaintiff therefore claims that the agent had authority to make such alteration. In my view, the plaintiff’s right to recover depends upon the question whether the agent had authority to alter this written instrument. The plaintiff does no; claim that the agent had originally an authority to make a policy, or to alter policies, which the Company issued. The question, then, depends on this, whether McLimont was permitted.to alter policies in respect to dates of sailing, from- time to time, and the Company sanctioned it, so that that became the customary usage and course of business. If that be so, then he is to be deemed to have authority to make the alteration in this instance. The plaintiff or his agent had a right to act upon the presumption of authority, if such had been the course of business, under the sanction of the Company. McLimont states that he did alter policies in that very particular, and that the Company sanctioned it. The Secretary, mentions that some alterations were reported to the Company and sanctioned. There is nothing to suggest á doubt that if Mr. Bunten had gone to the Company on the 11th of 'October, and asked an extension, they would have granted it. How it depends on the construction of the language of the witnesses, Ogden and Irving, and you must decide between McLimont and them; and this case, as before remarked, turns upon the question' whether McLimont had authority to make the alteration.”
    The jury brought in a verdict for the plaintiff for $4,961.92.
    The defendants moved for a new trial, which was denied. The following opinion was delivered in support of that decision:
    Hoffmae", J. Upon the evidence in the case, there are certain important points made out tending to support the verdict upon principles of equity merely.
    The agent of the plaintiff met McLimont, the agent of the defendants, on the 11th day of October, and told Mm the vessel was in the river, and he ought to fix the time of sailing as of the 15th day of October. The warranty was to sail on the 10th, application having been made the end of September or beginning of October.
    McLimont did not transmit the materials of the application to make the policy from Quebec to Hew York, until the 16th day of October.'
    On the 20th day of October, the policy was sent from Hew York and received about the 23d. It was sent .shortly after to the plaintiff’s agent. He noticed the warranty as being of the 10th day of October, and immediately took it to the defendants’ agent, who made the alteration to the 15th.
    On the 21st day of October, probably, certainly before the 24th, the Company in Hew York had notice that the vessel had not sailed till the 15th. that date being filled up in the vessel’s policy.
    
      It is true, that one of the officers of the Company made out the policy and forwarded it; another got the information as to the time of sailing. But nothing could be more dangerous than to act upon a rule which would make any such distinction, which would not make the Company responsible for the knowledge of every officer within whose province it was to deal with the particular matter.
    The loss took place about the 29th day of October, at sea.
    The learned Judge, on the trial, intimates an opinion that the defendants could have been compelled to execute a policy with the alteration to the 15th, had there been a contract on the 11-th, with a warranty to sail on the 15th. But the case turned, he thought, upon the question whether the agent had authority to make the alteration of- the written instrument. That question he left to the jury upon the evidence as to a custom for the agent to make, and the Company to ratify such an alteration. It is contended that the jury found in support of such a custom without a shadow of evidence,- indeed, explicitly against it.
    If the decision of the motion for a new trial rested upon this question, I should feel very great doubt whether the yerdict could be sustained. But justice has, in my opinion, been done, and upon the case as fully disclosed by the whole evidence, I cannot but think that an amendment of the pleading might have been allowed'to the effect, that the Company with knowledge of the actual time of sailing of the vessel authorized or permitted the delivery of the policy. On such a case made, it strikes me the verdict would be both just and conformable to the pleadings.
    I understand that- on such a motion as the present, on a case, the Court may be governed by such considerations.
    Motion denied, without costs.
    From the order denying the motion for a new trial, the defendants appealed to the" General Term.
    
      Alexander Hamilton, Jr., for appellants.
    The plaintiff was bound to prove, and the jury must have found as a fact, under the ruling of the Court, that policies, before the transaction in question, were altered by the agent in respect to dates of sailing, with the knowledge of the Company, “ as a customary usage and course of business.” It was not sufficient that in certain cases alterations were .sanctioned, and in others rejected; such a state of things could not establish a “ customary usage,” nor justify the presumption of authority to be derived from it. Such a course of business must, of course, have preceded the transaction in question.
    The contract was avoided when the policy was altered between the agent and the plaintiff, as both then knew the vessel had sailed on the 15th and not on the 10th.
    A man of ordinary prudence, would and should have required some evidence of the' agent’s authority. Nothing of the kind was done.
    In regard to the equitable grounds upon which the new trial was denied by the Special Term, it is to be remembered that the defendants did not come prepared upon any such point; the " sole issue presented by the pleadings being whether the alteration ■of the policy was valid and authorized or not.
    It was a surprise upon the counsel and party, and was introduced at the close of the trial.
    
      William Stanley, for respondent, contended, inter alia, that,
    I. The circumstances under which the alteration in the day of sailing was made, show perfect good faith on the part of the plaintiff, and on the part of Mr. McLimont, the defendants’ agent, and no fraud of any kind on the part of either plaintiff or defendants’ agentas pretended. The defense is technical and inequitable.
    II. McLimont was authorized to make the alteration in the policy.
    His written instructions were a sufficient authority fór the purpose. (See letter of 14th Dec., 1854.)
    It is clear that this letter authorized McLimont to enter into a binding contract, on behalf of the defendants, to insure the plaintiff’s cargo' upon the terms and conditions stated in the policy, as altered. When the contract was thus completed, the filling out and execution of the policy was a mere form; it did not change in any respect the rights or obligations of either of the parties. In the absence, then, of an express restriction, it would be absurd to say that an agent, who had full authority to settle all the terms and conditions upon which the policy should be made out, was not authorized to make the slightest alteration in the policy itself.
    
      The contract made by the agent would have been'complete and binding, though no policy had ever been issued. (Tayloe v. Merchants' Fire Ins. Co., 9 How. U. S. R., 405; Perkins v. Washington Ins Co., 4 Cow., 645; McCulloch v. The Eagle Ins. Co., 1 Pick., 280, per Parker, Ch. J.)
    III. The policy, being valid as originally drawn, notwithstanding the alteration, there was evidence in the case from which the defendants will be held to have waived the condition as to the vessel’s sailing on the 10th.
    1. The acts of the officers of the Company at New York were evidence of such waiver. (See last page of opinion of Hoffman, J.)
    2. There was a clear waiver by the agent, McLimont; and he had sufficient authority for that purpose.
    IY. The verdict can be sustained without the aid of the policy, upon the original contract to insure, made by McLimont with the plaintiff, on the 11th of October.
    The learned Judge, in his charge, says: “ If the agent- had authority, before the 10th day of October, to bind the defendants by an agreement to insure, with a warranty to sail on the 10th, then he had authority to bind them by such an agreement on the 11th, with a warranty to sail on 'the 15th. And had the plaintiff come here relying on a contract of that kind, the Court would have held them, and if necessary, would have required them to execute a policy in conformity with such a contract. But the plaintiff comes here with another case. This complaint is upon the policy itself, as altered.”
    The learned Judge erred in saying that the plaintiff came with another case. There was no difference in substance between the original contract made by the agent, and the contract evidenced by the policy. The latter was only a more formal expression of the former.
    If the complaint was not sufficient as it stood, the Judge should have ordered it to be amended so as to conform to the facts proved. (Code, § 173.) And this court will now order it to be so amended, or will treat it as having been amended. (Bowdoin v. Coleman, 3 Abb., 431; Bate v. Graham, 1 Kern., 242.)
   By the Court—Bosworth, Ch. J.

The Judge, before whom this action was tried, instructed the jury, inter alia, that the plaintiff’s “complaint is upon the policy, as altered. That the plaintiff’s right to recover depends upon the question whether the agent had authority to alter this written instrument. The plaintiff does not claim that the agent had, originally, any authority * * * to alter policies which the Company issued. The question, then, depends on this, whether McLimont was permitted to alter policies in respect to dates of sailing, from time to time, and the Company sanctioned it, so that that became the customary usage and course of business.”

“ This case, as before stated, turns upon the question, whether McLimont had authority to make the alteration.”

If the evidence given does not justify the inference, or conclusion that “ McLimont was permitted to alter policies, in respect to dates of sailing, from time to time, and the Company sanctioned it, so that that became the customary usage and course of business,” the verdict should be set aside and a new trial granted. The rights of suitors cannot be protected, unless the party against whom a verdict has been rendered, can, on a, motion to set it aside as contrary to law and evidence, be secured a just and firm application of the rule which, at the trial, he insists the jury should be instructed to apply, and which, in conformity to what he claims to be the law, they are instructed to apply to the facts they may find.

If, on a fair application of the law, which the jury were instructed to obey, he was entitled to a verdict, the verdict, if against him, should be set aside. If the law, as he insisted it should be stated in the charge of the Judge to the jury, had been stated differently, it would have been his right to except to the ruling, and if erroneous, his exception would secure to him a new trial.

Assuming it to be true that the instructions given were proper, and such as the defendants, on the trial of this action had a right to demand, and that, under the instructions given, the verdict of the jury should have been in their favor, and the verdict rendered against them is clearly against evidence, yet if a new trial be refused, on the idea that the plaintiff has some equity superior to the defendants’ clear legal right, they are remediless. An appeal to the Court of Appeals can be of no service. The jury were correctly instructed as to the law, and that Court will not inquire whether there was any evidence to warrant the verdict. If it be supposed that the plaintiff ought to recover on some equitable grounds, notwithstanding the right of the defendants to a verdict in this action, on the pleadings, as they stand, and on the evidence given at the trial, which has been had, and assuming the law to be, as the Judge in his charge instructed the jury it was, the defendants should at least have a chance to litigate this supposed equitable right in some action in which it is asserted prior to the trial, and upon pleadings which at least intimate the existence and nature of the supposed equitable right, and an intention to assert and enforce it.

We think, therefore, that unless the evidence warranted a verdict in favor of the plaintiff, upon the only .question submitted to the jury, a question on the proper determination of which, as they were instructed, the, right of. the plaintiff to recover alone depended, the verdict should be set aside and a new trial granted. ■ g

That the policy had been altered, after it had been issued by the defendants and delivered to the plaintiff, and that it had been so altered without any authority from the Company, and without their consent, and without any knowledge thereof on their part until a claim for a loss was presented under such policy, was set. up in their answer, as a defense, and such allegations were at issue upon the pleadings.

The letter of the 14th of December, 1854, authorized the agent to take risks upon “cargoes of lumber (from) Quebec to Great Britain and Continent of Europe,” at a “tariff of rates ” which he had presented to the Company and which the latter had approved. The letter of the 7th of July, 1855, in clear terms denies to kim the power to take other risks. Those rates, on vessels or cargoes- sailing before the 10th of October were 3 per cent, and after the 10th and on or before the 15th were 3-| per cent, and on and after the 15th and before the 25th, 4 per cent. So the agent testifies. The Secretary of the Company testifies that it was 4 per cent after the 10th until the 20th.

The policy in question, in and by which, as originally issuéd, the vessel was warranted to sail on the 10th of October, 1855,' states the sum insured to be $4,510, the premium $135.30, and the policy $1.25, or, in other words, insures at the rate of 3 per cent.

By the contract as altered, the vessel was warranted to sail on the 15th, and might and did sail after the 10th. And by its terms, as thus altered,-the Company took the risk and agreed to be responsible for the losses against which it insured, at 8 per cent. The written authority of the agent, by its terms, declares that, “ on all risks and amounts on risks, other than the amounts and risks which you are therein, (viz.: in the letter of December 14, 1854,) authorized to take, you are hot empowered to bind us, but they must first be submitted to us for our approval and sanction.”

His written authority, it is quite clear, did not authorize him to make such a contract, as the written policy, as altered by him, is, at the rate of premium therein expressed.

Was he allowed to make such alterations in policies that had been issued by the Company, and did the Company, knowing that he had done so, acquiesce in such acts, so that that became the customary usage and course of business ?

The agent swears that he was, and specifies as instances the ship Eleanor, from Quebec to Great Britain; the ship Tchernaya, and the ship Caledonia, from Ristigouch to Great Britain.

The alterations made in the policies of those three vessels were communicated by the agent to the Company. In the case of the Eleanor, the day of sailing was altered and an additional premium charged, and the Company sanctioned it.

In the case of the Tchernaya, the policy, as issued, was on the vessel, and included launching. In the case of the Caledonia, the time to sail was enlarged twenty-four hours.

There is no proof of a single case where such an alteration was made, and there was a subsequent loss, followed by payment by the Company of the sum insured, without the fact of such alteration having been made, being previously communicated to the Company and approved by them.

The evidence shows that the Company frequently assumed to decline risks which he had taken or proposed to.take; as withholding a policy on the Caledonia, until informed that she sailed before the 10th of August, 1855, unless an increased premium was paid. So in reducing the amount insured on Wm. McLimont’s policy, and increasing the rate (September 12, 1855); so in declining an alteration in the policy of the “Northern Belle,” (August 3,1855,) so in declining a risk on the “ Earitan,” (October 6; 1855,) so in “ declining the Splendid and refusing to sanction extension of Lucien,” by letter of the 19th of November, 1855, a date prior to the time when the defendants are shown'to have had notice or reason to suspect that the policy in question had been altered.

The officers of the Insurance Company deny, in their testimony, that the agent was ever allowed to alter policies so as to bind the Company, without their sanction of the act, or that any case occurred in which he altered the time of sailing specified in a policy after it was issued, and that they acquiesced in it, or paid a loss under it, when the fact of such alteration had not been previously communicated and expressly approved.

The policy in question is the first policy which the insured is proved to have effected with this Company. His son, who applied for it in his behalf to the agent, had no previous acquaintance with him, and had never seen him until he made such application-

The applicant did not, therefore,- rely upon the sanction by the defendants of previous similar act's of the agent, in respect to policies issued by them to the insured, in asking the alteration and in relying upon the altered policy as an authorized contract of the defendants:

To justify a jury in-finding the affirmative of the question which was submitted to them as the turning point in the controversy, the evidence should show, if not a succession, at least several cases, in which the agent, without asking the sanction of his acts by the Company, had made alterations of a like nature, on which the Company had acted and in which they had acquiesced when such alterations came to their knowledge without having been previously communicated by the agent, or the evidence should be such as would tend to prove that, although communicated by the agent, they were acquiesced in as acts, which he was competent to perform, and as binding on the Company.

Evidence short of this cannot justify the conclusion that the agent did alter policies, from time to time, with the sanction of the Company, so that the exercise of such authority by him “became the customary usage and course of business.”

And we think it may be safely affirmed that the agent, in no instance prior to this, was permitted to alter, or to the knowledge of the Company had altered a policy that had been issued by the Company to the insured, so that it became in terms a contract which, originally, he had no power to make. If, as altered, the risk was increased, and by the rules of the Company entitled them to a larger premium than that for which, by the policy, they agreed to be liable, there should at least be some evidence that such an alteration had been sanctioned either expressly by the Company, or by their acquiescence in it.'

This action is brought upon the policy, as being, as it now reads, a valid contract of the Company. The agent never had authority to make such a contract, and clearly he had no authority to alter a written contract of the Company and conyert it into a contract which he had no power to make, if .none had been executed by the Company.

A new trial should be granted, with costs to abide the event.

Ordered accordingly.  