
    EXCEL SERVICE COMPANY, A CORPORATION, PLAINTIFF, v. JAMES E. WORDLEY, DEFENDANT.
    Submitted November 6, 1924
    Derided January 20, 1925.
    Agency — Insurance—Broker Solicited Business as “Agent”— Received Commission From Defendant — Policy Canceled and Return Premium Paid by Insurance Agent to Broker— Plaintiff Sought to Recover Premium From Agent Defendant — Judgment of Trial Court for Plaintiff Justified Because the Facts Justified the Presumption That Broker was De* fendant’s Agent.
    On appeal from the District Court.
    Before Justices Tkenctiaeb, Mint den and Lloyd.
    Por the plaintiff-appellee, Arthur B. Seymour.
    
    For the defendant-appellant, Porter, Zink ■& Lafferty.
    
   Per Opeiail

This is a question of agency.- Wordley, the defendant below, was agent of the Scottish Union Insurance Company. As such he wrote a policy covering plaintiff’s property, and on it he received the premium. Soon after its issuance the plaintiff had it canceled; the return premium was paid to Wordley by the insurance company, and he, in turn, paid it over to one Cross. The question presented is whether Cross was the agent of the- plaintiff to receive the return premium.

The evidence showed that Cross had solicited the insurance from the plaintiff; that the premium was paid to him, and that Cross had placed the insurance, “as agent,” receiving twenty-five per cent, of the premium which he had paid Wordley, from Wordley in return. It also appeared that this was but one of a number of similar transactions of defendant and Cross.

The defendant testified that Cross was not his agent, and that he paid the return premium to Cross. The court found for the plaintiff, and we think was justified in so doing. We find no conclusive evidence that Cross was the agent of plaintiff to receive the return premium. The mere fact that he had placed the insurance in the first instance gave him no authority to receive the return premium on surrender of the policy as agent of the insured. The defendant having paid the money to Cross, carried the burden of proving that Cross was the agent of the Excel Service Company. Cross had acted with Wordley in other insurance matters, and, in fact, both he and Wordley were agents of the insurance company in the instant case. He had received from Wordley twenty-five per cent, of the initial premium. This, Wordley could not give, nor Cross receive except as an insurance broker. It could not be paid to anyone on behalf of the insured. Sy,pp. Comp. Stcd.j p. 814. It must be presumed that Cross received it lawfully as his share of the whole commission. This being time it establishes that up to that point he was simply an insurance agent dealing with another insurance agent in the transaction. It further appeared, however, that the plaintiff gave the instructions for cancellation of the policy to Cross. Whether, under the circumstances, this constituted an authority to collect was, we think, a question of fact. A mere instruction to have a policy canceled would not necessarily cany with it a power to receive the return premium. The court having found for the plaintiff, resolved this question of fact adversely to the defendant. This finding of fact we' cannot review.

The judgment will be affinned.  