
    STRINGHAM v. ST. NICHOLAS INSURANCE COMPANY.
    March, 1867.
    An agent of an insurance company, authorized to receive applications and make them temporarily binding, pending the consideration of the risk, and to receive premiums on renewals, has not implied authority to consent to an assignment of a policy.
    
    Authority to give such consent is not to be inferred from the fact that such agent was authorized to purchase the necessary books for the record of his business on behalf of the company, in which books his record of such assignment was made, although the person applying for the consent to the assignment may have supposed that such agent had authority to grant such consent.
    An agent cannot create an authority in himself to do a particular act, by its performance, or by asserting his authority to do it. To bind the principal, the agency must be established, and' one of so general a nature as to give him authority to do the act in question, or a subsequent ratification with full knowledge, must be proved.
    Joseph Stringham sued defendants, in the supreme court, on a policy of fire insurance issued by them to one L. Austin. Spaulding on July 12, 1856, for three thousand dollars, upon a stone flouring mill and machinery therein ; and on payment by Spaulding, J une 30, 1857, renewed for one year from July 12, 1857, to July 12, 1858. On August 25, 1857, Spaulding assigned the policy and all his interest therein to U. H. Wolfe, and on October 5, 1857, Wolfe assigned the same to plaintiff. The property was totally consumed by fire on November 15, 1857.
    The policy contained this clause: “ The interest of the assured in this policy is not assignable unless by consent of this corporation manifested in writing, and in case of any transfer or termination of the interest of the insured, either by sale or . otherwise, without such consent, this policy shall from thenceforth be void and of no effect.”
    Upon the back of said policy were printed two blank consents, as follows: “ The St. Nicholas, Insurance Company of, the city, of New York hereby consent that the interest of in. the within policy be assigned to , subject, nevertheless, to the conditions therein contained.
    “--, Secretary.”
    
    These consents were filled up and signed, previous to the execution of said assignments, respectively, on August 25 and October 5, 1857, so as to read as follows: “The St. Nicholas Insurance Company of the city of New York, hereby consent that the interest of L. A. Spaulding in the within policy be assigned to U. H. Wolfe, subject, nevertheless, to the conditions therein contained.
    “ H. A. Brewster, Agent.”
    
    The second consent was in all respects similar, except thait the name of U. H. Wolfe appeared in place of L. A. Spaulding’s, and that of Joseph Stringham in the place of U. H. Wolfe’s. The word “ secretary ” in each of said consents was erased, and the word “ agent” written in its place.
    The defense was, that the company had never given its consent to these assignments.
    i The referee sustained the defense, holding that Brewster, as j agent, was unauthorized to consent; and gave judgment for defendants.'
    
      
      The supreme court, upon substantially the same grounds as those assigned in the opinion.of this court, affirmed the judgment. The plaintiff appealed.
    
      W- Dorsheimer, for plaintiff, appellant.
    
      J. 0. Dimmich, for defendants, respondents;
    Cited Smith v. Saratoga County Mutual Fire Ins. Co., 1 Hill, 497; S. C., 3 Id. 508; Wilson v. Genesee Mutual Ins. Co., 14 N. Y. (4 Kern.) 418; Lightbody v. North America Ins. Co., 23 Wend. 22; Amory v. Hamilton, 17 Mass. 109; Perkins v. Washington Ins. Co., 3 Cow. 645; Seymour v. Wyckoff, 10 N. Y. (6 Seld.) 224; Nixon v. Palmer, 8 N. Y. (4 Seld.) 398; Roach v. Coe, 1 E. D. Smith, 175.
    
      
       Compare Ellis v. Albany City Ins. Co., 50 N. Y. 403; affiri^j^g- 4 Lans. 433; Carroll v. Charter Oak Ins. Co., vol. 1 of this series, p.,316, and note.
    
   Davies, Ch. J.

[After stating the facts.]—The only question seriously controverted upon the trial was, whether Brewster had authority to assent, on behalf of the company, to the assignments by Spaulding and Wolfe.

The plaintiff sought to establish such authority upon the grounds:

1. That Brewster had, on September 5, 1857, notified the defendants that Spaulding’s interest in the policy had been assigned to Wolfe, and that the company had by silence ratified the same.

2. That Brewster, as agent of the defendants, had authority to grant the assent of the company to those assignments.

The first position was sought to be established by the testimony of Brewster.

[We omit here that part of the opinion which discusses the first of these two grounds, and which is occupied with the credibility of certain testimony, without bearing on the principles of law.]

It is now contended, however, that Brewster, as agent of the defendants, had authority to grant the assent of the company to these assignments. It is very apparent from the testimony and the correspondence between Brewster and the company what his powers were.

1. He had authority to receive applications for insurance, and make them binding upon the company for the period of ten days. At the expiration of that time, "if the company did not assume the risk, it terminated.

2. He had power to receive the premiums on renewals of: policies, and transmit the same to the company, and if accepted by them, on the receipt by him of the renewed certificate, signed by the officers of the company, to. deliver the same to the assured.

His duties seem to have been confined almost exclusively, if not entirely, to these two matters. I do not attach any importance to the statement made by Brewster, that his impression is that he executed other permissions to assign policies; he says, “ It is an impression; I cannot state positively if such were executed, and I cannot say that they were”—for the reason already suggested, and for the additional one, that the statement is very vague and indefinite. If he had been in the practice of granting such consents, he could easily have ascertained the fact and mentioned the instances. The isolated case referred to in defendants’ letter of February 13, 1856, wherein they state, “ We have also noted the assignment of 8705, as requested,” is too indefinite and uncertain to show that the agent had a general authority to give similar consents in other cases.

But the language of the policy, and the blank consent printed on the back thereof, unmistakably indicate the steps to. be taken by a policy holder, when a consent to an assignment was desired, and the officer or agent only authorized to give the consent to assignments.. As already observed, the policy carried on its face notice to all holders, that the interest of the. assured was not assignable, unless by consent of the corporation manifested in writing, and the printed blanks on the back of the policy were like notice of the form of such consent, and the officer alone authorized to give it, and manifest the; assent of the company. It was -full notice to all that it must be done by its secretary, and the erasure by Brewster of the. word "secretary,” and writing in place thereof the word " agent,” was an admonition to the parties that the authority to give the consent was in the secretary only. It is1 doubtless true that the person applying to Brewster for these consents may have supposed that he had authority to grant them, or if; not, that his acts would he ratified by the defendants. But Brewster could not create an authority m himself to do the particular act, by its performance, or asserting his authority to do it. To bind his principal, his character as agent must be established and of so general a nature as to give him authority to do the act in quession, or subsequent ratification, with full knowledge, must be established. The proof in this case falls far short of making out either of these propositions. It was sought to bring home to the defendants knowledge of these assignments, by showing that Brewster had entered in books kept by him at Rochester, the fact that he had given the consent to these assignments. To make-the' contents of these books notice to the defendants, it was proven that 'the defendants, on the application of Brewster, had paid one of them a small sum, and that said book was kept in the office of said Brewster, and was lettered on the back, “ St. Mcholas Insurance Company, Policy Register, Rochester Agency, 1855.”

The person who procured said consents testified, that on both occasions of procuring the same, "I saw said Policy Register, and that Brewster entered in said Policy Register, the fact of such permission and assignment, and its date,” and that said person saw on these occasions each of said entries made. There was no evidence offered that the defendants, or any of their officers ever saw said book, or had any knowledge of its contents; and it affirmatively appeared that all the knowledge they or any of them had in relation to said book, was derived from a letter written by said Brewster to the secretary of the defendants, under date of “ Rochester, August 6, 1855,” in which he says: "We find it to be very necessary, as we advance in our business for you, that we should have a Policy Register for our own use. The companies we represent have generally preferred the purchase of a book here, and we charge it to them, though some prefer to send us books. Those we have cost us $3.50, and are expressly got up for us of a uniform kind. Can we order one for you ? ” To this letter the secretary of the defendants replied, under date of August 9, 1855: “Yours of the 6th instant is received. You are at liberty to purchase the necessary books on behalf of this company for the transaction of its business in your city.” The counsel for the plaintiff then turned to page 40 of said book, where the policy in suit is registered, and pointed out therein, against the description of the subject of insurance, the following entries in red ink:

“Assigned August 27, 1857, to IT. H. Wolfe.
“ October, 8, 1857, to Joseph Stringham, Buffalo.”

Defendants’ counsel objected to the reading of either of said entries in evidence from said book, and the referee sustained the objection, and excluded the evidence, and the plaintiff’s counsel then and there duly excepted to such decision. It certainly cannot be successfully maintained, that the circumstance that the defendants paid or consented to pay for the cost of this register for Brewster’s own use, changed in any respect relations then existing between Brewster and the defendants. It is not suggested that the defendants, or any of their officers, ever saw the said 'register, or were at any time made acquainted with its contents, or the lettering upon it, or the particular purposes to which it was applied. It did not constitute Brewster the clerk of the defendants, or bind them by the entries he or his'clerks made therein. Those entries were irrelevant to prove the fact that Brewster was the agent of the defendants to give their consents. That must be established by evidence aliunde his acts or declarations.

Neither the declarations of a man, nor his acts, can be given in evidence to prove that he is the agent of another, or the extent of his powers. Scott v. Crane, 1 Conn. 255; Plumsted v. Rudebagh, 1 Yeates, 502, 505; James v. Stookey, 1 Wash. C. Ct. 330.

Brewster testified that his agency for the defendants commenced upon the receipt of the letter from the secretary of the defendants of April 13, 1855, and he produced the letter, and it was read in evidence. There was no proof that any other or greater powers were ever conferred upon him. It was in reply to a letter from Brewster, in which he says, “ I should be glad to send your company risks, and can send you a good line at good rates.” The defendants’ secretary said: “ Your views with regard to a local agent to attend to the interests of our company in your city are correct. Should you feel disposed to send us applications of character mentioned in your letter, we will he happy to respond to them. As our directors do not allow agents to issue policies, or make policies binding for terms of over ten days, as yon can see by the enclosed receipts, we should restrict you also. . . . We have not had any printed applications of our own, but intend to get some printed soon. , Should you send any applications, you can for the present use such as you have on hand, substituting our name, &c. If desired, we will forward you some of our certificates to bind risks temporarily.”

The certificates so forwarded were in this form:

“St. Nicholas Insurance Company, No. 23, office comer of 8th Avenue and 14th St., New York. This certifies that I, H. A. Brewster, agent for the city of Rochester, have received of ---dollars, being-months’ premium on 8-insurance as per application No. —, dated the-day of --, 18—, to be forwarded to their office as above for their 1 action. It being understood and agreed between the parties that the said St. Nicholas Insurance Co. are not liable for this certificate beyond ten days from the date of the application referred to, unless the risk is accepted and a policy made and delivered for the whole term of--months, and in case the risk is not accepted the premium is to be returned.
“ (Signed) Wir. Winslow, President.
“ Wm. S. Slocum, Secretary.
“ Dated this-day of-, 185-.
Agent.”

Brewster testified that he received these certificates as early as when he commenced business for the defendants, as aforesaid, and exhibited them freely and generally to customers and persons who transacted business with the company at said office, No. 1 Arcade Buildings. Under plaintiff’s objection, Slocum testified that "some time in the early part of the year 1857, a conversation was had at the office of the company between the president of the company, the witness, and Brewster, respecting his power as agent. He wanted authority to write or issue policies for the defendants: he said he could do a large business, and a more desirable class of business, if he could issue policies. “I don’t recollect the particular words, but we declined, as we had not given such authority to agents.”

It is then apparent that the powers of Brewster as agent were restricted to the receipt and forwarding to defendants of applications for insurance, and authority to make a policy for only ten days; and the certificates which were exhibited to the customers generally, contained information of the character and extent of the powers of the agent. The declarations and acts of Brewster within the scope of his agency, if they had been admitted, would not be of any materiality. The declarations and representations of the agent, when not expressly authorized by the principal, must, in order to bind him, be within the scope of his agency. New York Life Ins. & Trust Co. v. Beebe, 7 N. Y. (3 Seld.) 364; Olding v. Smith, 11 Eng. L. & Eq. 424; Very v. Levy, 13 How. U. S. 345.

In the case in 3 Seld. (supra), Schermerhorn, the agent, swore that he was the agent of the respondents in procuring a loan for them from the appellants, and it was contended, on the part of the appellants, that respondents were concluded by his acts and representations, the same as if they were their own, upon the principle which pervades all cases of agency— that the principal is bound by all acts of his agent within the scope of his agency, which he holds him out to the world to possess, and that where the acts of the agent will bind the principal, there his representations, declarations and admissions respecting the subject matter will also bind him, if made at the same time, and constituting part of the res gestee. The court say: “ The declarations or representations of the agent, when not expressly authorized by the principal, must, in order to bind him, be within the scope of his agency. But that was not the case here. Schermerhorn’s agency was to obtain a loan for the respondents from the appellants. His alleged declarations, which are relied upon, are entirely without the scope of such or any other agency.” In that case, there was no evidence to show that the respondents knew of the alleged, representations of Schermerhorn, or that they ever authorized him to make them. So in the case at bar there is no evidence that these defendants ever authorized Brewster to give the consents to the two assignments mentioned, or that they ever knew that he had given such consents, until after the happening of the loss under the policy. We have seen what were the actual powers conferred by the defendants upon Brewster, and what was the scope of his agency.

Hot only was the power to give the consents in question not within the scope of that agency, but the policy itself, and the blank consents indorsed thereon, gave notice to all "holders of such policies that an agent of the company had no such power.

1 In view of all these considerations, the referee properly excluded the books kept by Brewster, and the entries theiein. They were illegitimate to enlarge,- alter, or modify his power as agent.

The judgment of the supreme court affirming the judgment upon- the report of the referee was correct, and should be affirmed, with costs.

Parker, J.

The question litigated in this action is, whether H. A. Brewster was the agent of the defendants, and as such authorized to give their consent to the assignments tif the policy, through which the plaintiff claims it.

The referee nonsuited the plaintiff, on the ground that he had failed to show that the defendants had consented as required by the policy, to the assignment of it, or that Brewster had" any authority to give such consent.

It is very clear, I think, that Brewster had, in fact, no such authority. But it is insisted by the plaintiff’s counsel, that the company dealt with Brewster in such a manner that he was justified in holding himself out to the public as the general agent; that he did represent himself to the plaintiff as such agent, and therefore that the company is bound by his acts in signing the consent to the assignments.

It is not contended that the plaintiff was induced to accept the consent of Brewster as that-of the company, by any act of the company, implying or recognizing the authority of Brewster to gire it, which "came to the knowledge of the plaintiff, but that the acts of the company justified Brewster in assuming authority to give the consent, and therefore they are bound by it.

This is but stating, in another form, that Brewster was in fact the agent of the company, which proposition, as already intimated, I do not regard as sustained by the evidence.

Neither do I see anything in the evidence warranting the statement that the defendants had an office in Rochester, in charge of which Brewster was acting as clerk. The fact that he was authorized by the company, at his request, to purchase at their expense a policy register, in which to keep an account of the business which he should do for the company, conies far short of establishing the fact claimed for it.

I think the nonsuit was properly upheld by the general term, and its judgment should be affirmed.

All the judges concurred, except Hunt, J., not voting.

Jungment affirmed, with costs.  