« ΠροηγούμενηΣυνέχεια »
agency, properly so called, or by a local board of direction having a general charge and control over the American business of the corporation without any immediate dictation or control from the corporation itself, constitutes in fact, as well as in law, a mere agency, and nothing beyond that.
And this is insufficient to change the domiciliary nature of the corporation itself under whose power and authority, whether acquired by its foreign charter or the laws of the state relating to foreign insurance companies doing business here, this formal as well as efficient organization may have taken place. This organization was merely the medium through which the defendant carried on or transacted its American insurance business, the means through which it was done, not the body itself which did that business. Accordingly, where insurances were made, as is shown by the policy issued in this instance, it was the defendant that made the insurance and was to receive the premium for it, and pay the loss arising under it, and not the agency and board of directors existing in the city of New York. It is true, the money would
pass into the hands of the local agency and under the control of the local board, when premiums were paid, and from them in the payment of losses accepted and adjusted by them; but still it would be all the time received and disbursed as the money of the defendant, in whose behalf and under whose authority the local board and agency alone had the power of acting.
As the contract of insurance made in this case was necessarily the contract of the defendant, therefore, when the war, or Southern insurrection, arose, it was not one which existed between a loyal citizen and a rebel, but of necessity between a neutral and a rebel, recognised by the defendant's government as a belligerent.
And recognition, although not binding upon or adopted in a friendly spirit to the government of the United States, was binding and controlling as authority upon the defendant. As a contract between a neutral and a rebel, or, as the defendant's government designated him, a belligerent, it was neither annulled nor suspended by the proclamation of the President or the laws of Congress, for they were not expressly or by necessary implication made applicable to cases of that character. The plaintiff was not therefore prevented from maintaining this action by anything rendering the insurance illegal which was effected in this case.
But by the terms of the policy, the right of the assured to
depend upon it as an insurance was rendered conditional upon the performance of the stipulations requiring payment of the premiums. By the written appointment of the agent at Richmond, no authority was conferred upon him to receive payment of insurance premiums. That appears to have been derived from what were called renewal receipts, which were forwarded from the agency at New York to the local agent, and by him delivered to the assured as the premiums were paid. Even this practice was discontinued after the early part of the year 1861.
1861. This discontinuance did not arise out of any disposition manifested by any act of the defendant, or the New York agency, to terminate its policies or to decline payment of its premiums, but on account of their inability to communicate readily with the local agent at Richmond. When it took place, the means of carrying on such communications had been interrupted and suspended by the insurrection. The facilities before that time supplied by the mails and express companies traversing the country had necessarily been withdrawn on account of the hostile and dangerous condition of the Southern States, and the only remaining means of communication was that which was supplied by individuals occasionally passing around or through the lines of military forces.
The agency at New York appears to have been of the most complete and general character, but still, as already shown, merely an agency. It therefore had the power to create and appoint subordinate agencies, wherever in its judgment the business of the defendant required them to be located. And this it could do either by writing or by parol. And when the appointment was made by writing and nothing limiting the action of the local agency was contained in it, the power of the local agent could afterwards without any legal impropriety be enlarged by parol. In this respect the New York agency was unrestricted by any limitations placed upon its action by the defendant, or the instruments used by itself for the creation of the subordinate local agency.
For while the written power of appointment issued to Cowardin in this case conferred certain authority upon him as agent for the defendant, not as agent for the New York agency at the city of Richmond, it contained nothing preventing additional authority being given to him, either by the New York agency or by the defendant itself. Neither was anything of that nature contained
in the renewal receipts. For by the printed instructions issued to him by the New York agency he was only prohibited from receiving premiums without a regular renewal receipt, in the absence of special authority for acting otherwise from the New York office. This agency could therefore authorize the subordinate agency to receive the premiums accruing on the defendant's policies without supplying him with renewal receipts for that purpose. And in the condition of the country, after the premium was paid in June 1861, which rendered the transmission of these renewal receipts impracticable, it was claimed on the part of the plaintiff that such authority was actually conferred.
Evidence was given on the trial tending to substantiate this claim, and on the part of the defendant to resist it. This evidence was of a conflicting nature, and as it was fairly submitted to the jury this court at the present time has no power to interfere with their conclusion upon that subject. They have found that the authority was conferred, substantially, of course, as the evidence on the part of the plaintiff tended to establish it. And if it was, it amounted to a general authority to the local agent at Richmond to receive the premiums without renewal receipts and without specific directions as to what he should receive them in. It was therefore a general authority to him to collect the premiums accruing in the defendant's favor upon the policies which it had previously issued. And this authority, under the well-settled principles of the law of agency, the agent became bound to his principal to make use of according to the ordinary course of the business he was employed in and the settled usages,
any were found to exist, relating to the subject. He could not, therefore, bind his principal or satisfy the powers of his agency by accepting property for the premiums, for that would convert the power to receive payment merely into an authority to traffic in merchandise.
But from the nature of the power to receive payment the agent necessarily derived the authority to accept whatever was generally used for the purpose of making payments in the locality where the debts were to be collected. As it has turned out, it would have been more profitable for the principal if the agent had collected the premium upon this insurance in gold coin or treasury notes of the United States. But where this authority to collect the premiums was exercised, it appears from the evidence that it
could not be either conveniently or effectively used in that manner, for gold was shown to have disappeared almost entirely from circulation, and it is a matter of history that the insurrectionary authorities discountenanced the use of United States treasury notes. When this authority was given, which the'jury have found was conferred upon the agent at Richmond, there was no immediate indication that any further opportunity would be afforded for communicating with him while hostile relations existed between the government and the rebel states.
And it must therefore have been designed for his guide under circumstances at that time not fully anticipated or comprehended. The end to be obtained by the use and exercise of the authority was to be the payment of the indebtedness accruing to the defend. ant. And if circumstances should arise requiring the exercise of judgment and discretion in making the collection, it must have been intended that this agent should determine such matters for himself on account of the impracticability of communicating either with the defendant or the general agency located here for the procurement of special directions. Such emergencies must, from the nature of the times, have been necessarily within the expectation of the general agency, and when they arose afterwards it was the duty of the special agent to determine upon the best mode of securing the object of his principal under the circumstances. His duty as well as his authority was to collect the debts maturing in favor of the defendant. How that could best be done was necessarily left to his own prudence and judgment when the changes in the times rendered a determination upon that point indispensable to the exercise of his authority.
That such changes did arise is clearly shown by the evidence. For soon after the agent at Richmond was directed to collect the premiums without renewal receipts the actual currency of that locality was supplanted by Confederate notes of the insurrectionary government. Although not made a legal tender for the payment of debts, all other species of currency were soon driven out of circulation by them. And after that they were the financial means used for buying and selling property, and for creating and discharging debts. And while that was their character, and the premium upon gold and foreign exchange was not far above them, they were received by this agent in payment of the premiums due on this insurance.
The uncontradicted evidence given in the case is that these notes were issued soon after the passage of the act providing for them, which was on the 19th of August 1861.
And from that time they passed as of equal value with banknotes, and during the residue of 1861 and through 1862, they were known as Confederate money and passed almost at par at Richmond. The acceptance of this currency as payment of the premiums upon the policy in suit, spurious and unlawful as the currency itself was, very materially differed from the acceptance of payment in property or in counterfeit notes or the notes of insolvent banks. For the acceptance of property was not within the spirit or scope of the agency, and the bills of insolvent banks and counterfeit notes would be wholly devoid of value and therefore no payment whatever in any just sense of that term. But these notes were not of that description, for they had a circulating value at the time the agent received them, and were used for all the ordinary purposes of currency. While in that condition he received them as payment, and from the hopeful account given by him of the prospects of the Confederacy, contained in his letter of June 1861, he undoubtedly did so in good faith, believing he was promoting his principal's interests by doing so.
From the nature of the power which the jury have necessarily found was conferred upon him, the circumstances that must have been expected to attend the execution of it, the emergency he afterwards encountered, when the previous currency of his state was practically excluded from _circulation by that which was issued by the Confederate authorities, the premiums upon this policy were in judgment of law paid when the defendant's agent received the amount due for them in these notes. It was the only possible mode under the circumstances existing at that time in which the premiums could be collected by him, and as it had been made his duty to obtain their payment, he was necessarily authorized to receive it in that manner.
But even if that authority were not a necessary incident of the power conferred upon him, still as he was authorized to collect the premiums, his acceptance of Confederate notes for the amount of them discharged the assured. For under the circumstances existing at the time when the authority to collect was conferred upon him, , it could neither have been expected nor intended that the identical