
    Leo Owiter, Resp’t, v. The Metropolitan Life Insurance Co., App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed August 9, 1893.)
    
    Principal and agent—Insurance agents — Settlement of accounts.
    In an action to recover a deposit made by an insurance agent as security for his honesty, the company set up a counterclaim for a balance of account owing to it as appeared by a statement of its auditing officers. The contract of employment specified two classes of compensation, one based on the increase of business, and also provided that lapsed policies were to be charged to the agent in the same proportion, and the agent therein agreed that the state of his account might be taken at any time from his books by any person authorized by the company, with or without notice, and be determined by the report of such inspection, and ratified the computations so to be made, and agreed that the result thereof should represent his indebtedness, waiving the production of any evidence other than the report and account. Held, that the report made by the auditing officer was conclusive, and the court erred in refusing to charge that plaintiff was bound thereby.
    Appeal by the defendant from a judgment, entered upon the verdict of a jury in the district court in the city of Hew York for the fourth judicial district, in favor of the plaintiff.
    The opinion states the material facts.
    
      William H. Arnoux, for app’lt; Wm. John Warburton, for resp’t.
   Giegerich, J.

This action was brought by an agent of the defendant company to recover the sum of fifty dollars deposited as security for honesty in the course of his employment. The plaintiff entered the defendant’s employ as agent of its branch in this city, upon the 23d day of September, 1892, and left it on the 4th of January, 1893. The sum in suit was paid by him when he entered upon such employment. The compensation attached to-the position of agent, according to the terms of the contract, was of two kinds, viz. : An “ ordinary salary ” of fifteen per cent upon the amount actually collected -and paid in by the agent to the company, and a “ special salary ” according to the following terms: The special salary shall be fifteen times the amount of the net weekly increase of collectible debit in my agency. Ret increase of collectible debit is the excess of hew business obtained by and credited to me over policies lapsed and charged against me on the books of the company, either during the continuance of my agency or within six weeks after the official transfer in the books of the company of the business of my agency.”

It appeared that plaintiff had been previously employed in the capacity of agent by defendant’s Brooklyn branch under a like contract of employment.

The provisions with reference to compensation were identical in the two contracts, ánd each contained a clause providing for the determination of the state of the account between the company and the agent in the following terms :

“ I agree that the condition of my account with the company, either before or after the termination of my employment by the company, shall be ascertained and determined by an inspection of my weekly accounts, or my ledger, and by my collection book,- or by the premium receipt books of the policyholders included in my debit; such inspection may be made at the direction of the company at any time, with or without notice to me, and by any person authorized by the company to make it; and when made, whether before or after the termination of my agency, and whether I shall be present at the inspection or not, I agree that the actual condition of my account with the company shall be determined by the report of the inspection as it shall be made by the authorized person aforesaid as he shall compute the same from his entries in the inspection book. And I hereby give such employes who shall inspect my agency as aforesaid full power and authority to compute the sum due by me to the company as it shall appear upon such inspection by him, and I hereby ratify his computations and agree that the result thereof shall represent my indebtedness to the company, hereby waiving the production of any evidence other than such report and account.”

There was a condition of the employment whereby the agent was to be charged with the amount of lapsed policies which he had solicited, in the same degree as such policies had formed the basis for special compensation, and defendant set up a counterclaim upon the difference of account in its favor by reason of such condition, which counterclaim is based upon an indebtedness upon both contracts.

Evidence as to the amount of such indebtedness was given by the defendant’s auditing officers. Evidence was also given by defendant that an amount in excess of plaintiff’s claim was due from him to defendant upon his contract of employment in the New York branch.

The evidence given upon these points was that of authorized officers of the company; as to their authority there is no contradiction.

As to the amount due the company under the Brooklyn contract, such indebtedness was shown to be $132.60, but the plaintiff testified that when he left that employment everything was settled, that he did not owe the defendant one cent, and that he was all clear. Nevertheless, under his contract, he could be charged with lapses occurring thereafter, and, as to the amount of such lapses, the report of the person or persons authorized by the company to make an inspection of the plaintiff’s weekly accounts in his-ledger was conclusive under the seventh paragraph of the contract, as appears above.

In submitting the case to the jury the learned justice should,, therefore, have charged as requested, that the plaintiff was bound by the statements of the company’s officers, and it cannot be-reasonably-said that the defendant’s case was not prejudiced by this error.

Again, the evidence given by the defendant as to plaintiff’s indebtedness under the New York contract was uncontradicted, and, at all events, we think that a verdict should have been directed in defendant’s favor for the amount so proved, less any sum which they may have found to be due to the plaintiff from the defendant. The witness so testifying was not an interested witness in the sense which would require the submission of his-testimony to the jury in order that his credibility should be" passed upon. He testified in the course of his duties as the arbiter appointed by the plaintiff under his contract to decide this very question of account. His uncontradicted testimony was conclusive. See Plyer v. German American Ins. Co., 121 N. Y., 692; reported in full in 3 Silv. Ct. App., 46; 31 St. Rep., 836.

The errors above pointed out necessitate a reversal of the judgment, and a consideration of any other questions arising upon this appeal is not necessary.

The judgment should be reversed and new trial ordered, with costs to abide the event.

Bischoff, J., concurs.  