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give plaintiff the receipt for $263.15, paid and immediately notified plaintiff and said and tendered to defendant as the payment Doremus that it would not accept the same, due November 30, 1891. Plaintiff alleges and would not and did not ratify the act that on November 6, 1891, the defendant de- of its said agent Doremus in entering into clared said policy void, and refused to fur- said agreement, and would not accept the ther deal with plaintiff; that plaintiff has substitution of debtors,-all of which plaindone everything required to be done; where- tiff well knew before the premium for 1890 fore he prays that the receipts for premiums became due and payable; that said Fred S. paid and tendered be delivered by defendant Doremus did not pay defendant the premium to him on payment into court of said sum due November 30, 1890; that on or about Noof $151.31, and, in the event of the failure vember 30, 1890, the day when said premium to deliver said receipts, that plaintiff have became due, defendant demanded payment judgment against defendant for $638.15. At- of the $263.15, as premium, but plaintiff retached to the complaint as an exhibit (A) is fused to pay; that defendant never agreed a copy of the policy, in the usual form of with plaintiff, or with the said Doremus, dividend tontine insurance policies. On the to accept the said substitution of debtors, as back of the policy are various conditions and the contract of employment between defendagreements. One condition is that if the pre- ant and Doremus prohibited the incurring of miums mentioned, or any of them, shall not debts or obligations on the part of debe paid on or before a number of the several fendant, except by its written consent, of days stipulated for the payment thereof, re- which contract plaintiff had knowledge bespectively, or within three days thereafter, fore the 1890 premium became due; that on respectively, the policy shall cease, and be or about November 30, 1890, in consequence null and void. A further condition is that of the failure, refusal, and neglect of plainagents may receive premiums at or before tiff to pay the defendant the 1890 premium, the time when due, only upon production and to wit, $263.15, the plaintiff's policy was dedelivery of receipt of the secretary of the clared null and void, in accordance with the company, but cannot make, alter, or dis- conditions of said policy. The plaintiff's repcharge contracts or waive forfeitures. The lication denies the material matters of deannual premium was $263.15. The defend- fendant's answer, and sets up that all the ant, by answer, admits that about November transactions with Doremus were with him 20, 1889, an insurance contract for $5,000 was as manager of the defendant corporation, and entered into, but denies that it agreed to pay that a large portion of the rentals was for plaintiff the sum of $5,000, save and except as an office for defendant; pleads that the arin accordance with the terms of the policy; ad- rangement between plaintiff and Doremus as mits the first payment of $263.15, but denies manager was ratified and indorsed by the dethat of the premium due on November 30, fendant by its subsequent acts, and that said 1890, there was anything paid to defendant, arrangement was made before the original as alleged in plaintiff's complaint; denies delivery of the policy, and the policy deliverthat of the premium due November 30, 1891, ed in pursuance to said arrangement; denies plaintiff paid $111.85 at any time; and de- that the company ever notified plaintiff that nies, on information and belief, that on No- it did not accept and ratify the aforesaid arvember 6, 1891, plaintiff tendered to defend. rangement; denies that the company ever ant the remainder of said premium, to wit, demanded payment of premiums alleged; $151.30. Defendant admits that it has not and denies, on information and belief, that given plaintiff receipt for the 1890 premium, on or about November 30, 1890, the policy and says plaintiff was not entitled thereto; was declared null and void, but that if such admits that it has not given plaintiff the re- act was done no notice thereof was ever comceipt for 1891; and alleges that plaintiff re- municated to plaintiff. There was a trial to fused and failed to pay the premium due, the court without a jury. At the conclusion $263.15, for 1891. The defendant pleads that of plaintiff's testimony defendant moved for the policy issued to plaintiff was canceled a nonsuit. The court granted the motion, long prior to November 6, 1991; and affirm- and entered judgment of dismissal in favor atively then sets forth that Fred S. Dore- of the defendant for costs. The plaintiff apmus, who was manager for the defendant in peals from the judgment, and asks this Montana, was indebted in 1890 to plaintiff in court to review the order of the trial court the sum of $375, for private rooms occupied granting the motion for nonsuit. by said Doremus in the Diamond block, in On the trial plaintiff swore that Fred S. Helena, of which block plaintiff was the own- Doremus, manager of the company, occuer; that plaintiff and said Doremus entered pied insurance offices in the Gold block, and into an agreement, without any authority so rooms for his private uses in the Diamond to do, and without the knowledge or consent block, both of which he leased from plainof this defendant, whereby said Doremus tiff: At the solicitation of Doremus, plaintiff, was to apply his private indebtedness to about November, 1889, took a policy for $5,plaintiff in payment of the premium which 000, after Doremus had told him that the plaintiff owed defendant for the year 1890; company were paying good rents to defendthat prior to November 30, 1890, defendant ant, and a couple of months' rents each year was informed of the aforesaid agreement, would really pay for the insurance policy. He stated this before plaintiff agreed to take of the company.

Plaintiff offered the printthe policy, and before its issuance. Plain- ed notice that the premium for 1890 on his tiff paid the first premium by four months' policy would be due at the Helena agency on rent of rooms in the Diamond block and one November 30, 1890, and, “if not paid on or month's rent of the offices. A memorandum, before that date, the policy, and all payments showing private and office-rent accounts, was thereon, will become forfeited and void, exmade out at the time between plaintiff and cept as otherwise provided in the policy." Doremus. At the end of that accounting the This notice was signed by Cornelius Doremus policy was delivered. The terms of the policy as vice president. Plaintiff then mentioned are outlined in the statement of the case. to Doremus, Sr., that he had not received his Plaintiff further said that the foregoing 1890 receipt, and the 1891 premium would transactions disposed of the business for a soon be due, and that he would like to settle year. In July or August of 1890, Doremus the matter up. Plaintiff thinks the conversaasked plaintiff if he would apply the room tion drifted as to how the premium had been rent to the second year's premium. Plaintiff paid in the first instance. Doremus, Sr., said told him, “Yes," and they entered into a set- that Fred was not in, but, if he would return, tlement of accounts, evidenced by a memo- no doubt he would find him, and "fix matrandum of private and office rents, which ters up." The next morning plaintiff and memorandum was as follows:

Mr. Kinsley saw Fred. Fred told them that Nov.

$115 00

his father would do nothing with the "matDec.

115 00

ter of receipts.” Doremus, Sr., interrupted Jany.

115 00

the interview. Plaintiff tendered to Dore. Feby.

115 00 Mrch.

115 00

mus, Sr., the balance due on the 1891 premiApl.

115 00

um, and demanded his receipts for 1890 and May

115 00

1891. Doremus, Sr., by reason of previous June

115 00

"general talk" of contracts with Fred, knew $320 00

the situation very well. Plaintiff thinks Cash, policy..

$263 15 that at the July interview with Doremus, Check, Dec. 31.

195 00 Apl. 10.

230 00

Sr., he had told him of the arrangements beMay 29, Dep.

50 00

tween himself and Fred. At the first interJune 5...

180 00 view, in November, Doremus, Sr., said he

did not remember anything about the mat

$918 15 $30 00

ter. "I don't know,” said Doremus, Sr.;

"I will go and see.” He went to the bookDoremus accepted the memorandum, plain

keeper, and returned with a piece of paper, tiff issued receipt, and, so far as the pre

which plaintiff read. Plaintiff said the 1891 mium of 1890 was concerned, the matter was

preiniuin was not due until the 30th of Nosettled. Doremus went away about Au

vember, but, being in New York, he thought gust, 1890. Plaintiff wrote him that he had

he would straighten the matter up. Dorereceived a formal printed notice of the

mus, Sr., said Fred, who had attended to premium for 1890 becoming due,-this was

those matters, would be in shortly, and "will in November, 1890,-and he wished Doremus

fix it up. If there is any mistake about it, would attend to it, and see that his receipt

will correct it, no doubt. Whatever he does was forthcoming. Doremus said he would

will be satisfactory. I don't understand this, attend to it. The agreement that subse

but if you will wait I think he will be in quent rents should be applied to the 1891

shortly." The paper referred to was as folpremium was by letter. When the insurance

lows: was made in the first place there was talk,

83278 and it was understood in a general way,

Nov. 30, '89.

$5000. 26315 20 En. Tont. 20. about applying the rents to the premiums,

Nov. '89 and that rents should apply to the premiums.

Lapsed It did not make any difference whether the

'91. company credited it up with the rent, or Plaintiff further testified, on cross-examiwhether plaintiff tendered defendant a check nation, that he never took any steps to and he returned the rent. They also corre- learn the authority or scope of the agency of sponded about the 1891 receipt. Doremus said Fred Doremus; knew nothing about it; and he would attend to it, and to continue apply that, when the agreement was made about aping rents to the policy of 1891 until he re- plying his private debts for his room rent on turned. In July, 1891, plaintiff saw Fred the company's account, he presumed that by Doremus in New York. He was then occu- reason of the status of the company, and the pying a room marked "Resident” or “Metro- relationship of Fred to a high official in politan” manager. He excused himself for the company, it would not be necessary to his negligence in forwarding the receipt for

into the authority of Fred Doremus. 1890. He said he would mail it at once. It Plaintiff never received any cash from the never came. In November, 1891, plaintiff company for office rent, but got checks. In and J. W. Kinsley, Esq., went to New York. the first premium of 1889 there was one They called upon Cornelius Doremus, father month of office rent included, $65, but the of Fred, whose office was at the headquarters rest of that premium was for private apart

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ments occupied by Doremus and Duryee in rangement or agreement made by Fred Dorethe Diamond block. No demand, except the mus with Sullivan, whereby the rentals due notice hereinbefore referred to, for the 1890 by Doremus to Sullivan for his private apartpremium, was made. The Diamond block ments should be deemed payment of plainrent was $50 a month. Plaintiff read the pol- tiff's premium, was wholly beyond the scope icy, and had made a demand for the re- of Doremus' power as the manager or general ceipt for the 1890 premium in 1891, before agent of the defendant company, and was not the time of his visit to New York. But he binding upon the company, unless authorized never wrote to the home office, and never by previous authority or subsequent sancgave the home office any information of the tion, "Whatever an agent does can be arrangement between himself and Fred un- done only in the way usual in the line of til the New York visit, in 1891. On redirect business in which he is acting. There is an examination the witness testified that he in- implication to this effect arising from the formed one Haltman, who conducted the nature of his employment, and it is as efbusiness in Helena after Fred Doremus left, fectual as if it had been expressed in the that the 1890 premium was arranged with most formal terms. It is present whenever Fred, but plaintiff did not tell him what the his authority is called into activity, and prearrangements were. The company has nev- scribes the manner, as well as the limit, of er returned the amount of the premiums its exercise." Hoffman v. Insurance Co., 92 paid, and, when the money was tendered in U. S. 161; Gould v. Blodgett, 61 N. H. 115; New York, Doremus, Sr., refused it.

Benj. Sales, $ 1099. But appellant contends, Mr. Kinsley testified as follows: That he with much earnestness, that, even if the arvisited the company's office in New York rangement referred to was beyond the scope four times. That Cornelius Doremus was of the agent's power, there was an affirmvice president and manager of the company

ance of it, and that plaintiff may recover at that time. Kinsley's first visit was on upon the familiar principle that, when an November 6, 1891. He tendered $151 to a agent makes a contract beyond his power, bookkeeper, asking for a receipt of Sulli- the principal cannot ratify any part of the van's premium for 1891. The bookkeeper unauthorized contract, but must ratify the told him the premium was $263.15, and re- whole of it; or, as plaintiff well expresses ferred him to Fred Doremus or his father. the rule, "he cannot accept what is advanSullivan and Kinsley thereafter had an in- tageous and reject the remainder.” The terview with Doremus, Sr. The bookkeeper facts, however, prevent the application of handed the slip to Doremus, Sr., testified to the principle invoked to the case under conby Sullivan, to the effect that the policy

sideration. The company, being ignorant of had lapsed in 1891. Doremus told him to and in no way bound by the agreement of see Fred, and “whatever he says about it its agent with relation to his private debts, goes.”

Mr. Kinsley further testified that had a right to rest upon the conditions of Mr. Sullivan told Doremus, Sr., that the its policy, which provided, among others, as premium of 1890 and this much of 1891 had follows: “Conditions and agreements of this been paid by the rent for offices and rooms,

insurance: This policy shall cease, and be and that it was in response to that explana- null, void, and of no effect, and the company tion that he said, “Whatever Fred says goes."

shall not be liable for the payment of the Fred came in, and Doremus, Sr., then said,

sum assured, or any part thereof, but all “You go in and see Fred, and fix that mat- premiums previously paid shall be the absoter up." Mr. Kinsley showed the figures to

lute property of the company, without any Fred. Fred said it was all right, and “that he account whatever to be rendered therefor. would see his father, and get the receipts,

Permanent conditions: (1) (Payment of Preand to come in in the morning, and it would

miums.) If the premiums mentioned withbe all right, but declined to receive the $151." in, or any of them, shall not be paid on or On November 7th, Fred said that he had

before noon of the several days stipulated spoken to his father; he would do nothing. for the payment thereof, respectively, or Doremus, Sr., about that time came in, and

within three days thereof, respectively." excitedly told them that there was "nothing

“Agents holding an appointment from the there belonging to them, and nothing they company are authorized to receive premiums could get.” The tender of $151 was then made

at or before the time when due, only upon and refused. There was some testimony to

production and delivery of the receipt of the the effect that premiums were often paid at

secretary of the company, but not to make, the office of Doremus and Haltman, man

alter, or discharge contracts or waive foragers of the company in Helena, but it was

feitures." unimportant in the consideration of this

Mr. Sullivan knew, by the provisions of the contract of insurance entered into between

himself and the defendant, that the premiJ. W. Kinsley and T. C. Bach, for appel

um for 1890 would be due November 30th. lant. H. G. McIntire and R. R. Purcell,

Instead of paying it, he communicated with for respondent.

the agent Doremus, and relied upon him to

relieve himself (Sullivan) of the liability to HUNT, J. (after stating the facts). We the defendant because of the private conare very clearly of the opinion that the ar- tract which they had entered into concern

case.

um

ing the rentals of apartments. Such ar- bers, or the success of the whole scheme is rangement, however, being without defend- endangered. The insured parties are assoant's knowledge when entered into, was á ciates in a great scheme. This associated fraud on Doremus' part against his princi- relation exists whether the company be a pal, and cannot bind the company, unless mutual one or not. Each is interested in subsequently ratified by it. Hoffman y. In- the engagements of all; for out of the cosurance Co., 92 U. S. 161; Caitoir v. Insur- existence of many risks arises the law of avance Co., 33 N. J. Law, 487. The plaintiff erage, which underlies the whole business. ought to have inquired into the authority of An essential feature of this scheme is the the agent Doremus when entering into the mathematical calculations referred to, on arrangements made. He seems in good faith which the premiums and amounts assured to have relied upon the character of the de- are based; and these calculations, again, are fendant's agent, and the general reputation based on the assumption of average morof the company; but his mistaken confidence tality, and of prompt payments and comin the personal integrity of Fred Doremus pound interest thereon. Delinquency cancannot, under all the facts,' affect the com- not be tolerated nor redeemed, except at the pany in this matter, or relieve him from the option of the company. This has always consequence of his failure to pay the pre- been the understanding and the practice in mium for 1890 on November 30th, or within this department of business. Some compathe prescribed time thereafter. In Bank v. nies, it is true, accord a grace of thirty days, Hall, 8 Mont. 341, 20 Pac. 638, it was said, or other fixed period, within which the prein relation to the reliance placed upon the mium in' arrear may be paid, on certain conauthority, or the supposed authority, of an

ditions of continued good health, etc. But agent: “This transaction appears to have this is a matter of stipulation, or of discrebeen entered into by the bank without suffi- tion, on the part of the particular company. cient scrutiny into the authority of Camp. When no stipulation exists, it is the general While hardship may sometimes result from understanding that time is material, and such confidence, it is better so than to relax

that the forfeiture is absolute if the premithe familiar rule that an agent cannot bind be not paid. The extraordinary and his principal by acts done without authority;

even desperate efforts sometimes made, when and that other rule, that all persons dealing an insured person is in extremis, to meet a with an agent are bound to ascertain the premium coming due, demonstrates the comscope of his authority, or otherwise they act mon view of this matter." at their peril. Blum v. Robertson, 24 Cal. We regard the statements made by plain140, and cases cited.” The plaintiff argues tilf to Fred Doremus in July, 1891, as wholly that by reason of the information given by immaterial; and we may assume that there him to Doremus, Sr., secretary and general could have been a waiver of the forfeiture manager, in July, 1891, of the arrangement

by the consent of Cornelius Doremus, as secbetween himself and Fred, and by the si- retary and general manager, yet we can find lence of Doremus, Sr., at that time, as well no act, express or implied, on the part of as by his statements made in November, Doremus, Sr., as general manager, from 1891, the company ratified such agreement; which the court can fairly infer that there but it must be remembered that, by the was any approval of the unauthorized acts terms of the policy itself, the contract of the of defendant's agent Fred, or any waiver on plaintiff had not been carried out, because, the company's part of the forfeiture of plainwhen he failed to pay the cash premium due tiff's policy, which had occurred long before in November, 1890, or soon thereafter, his the interviews, and by operation of the polpolicy had become null and void, and the icy itself. The silence of Doremus, Sr., at company could claim a forfeiture thereof. the July interview, was not a waiver, nor In Insurance Co. v. Statham, 93 U. S. 24, was the company at that time obliged to do the court, with great ability, state the reason or say anyt! to make the forfeiture effecand necessity for promptness in the pay- tual. Titus v. Insurance Co., 81 N. Y. 410. ment of life insurance premiums, in the fol- Coming to the November, 1891, interviews, lowing language: "All the calculations of the fact must be always borne in mind that the insurance company are based on the the policy of plaintiff had lapsed,-it was hypothesis of prompt payments. They not dead. Plaintiff told Doremus, Sr., that he only calculate on the receipt of the premi- would like to pay both premiums. “I had ums when due, but on compounding interest had some correspondence," testified plaintiff, upon them. It is on this basis that they “with Fred in regard to the matter, and he are enabled to offer assurance at the favora- has been a little slow. I don't know whethble rates they do. Forfeiture for nonpay- er the conversation drifted at that time as ment is a necessary means for protecting to how the premium had been paid in the themselves from embarrassment. Unless it first instance, but I think it did. When I were enforceable, the business would be spoke to him about the amount of the prethrown into utter confusion. It is like the mium which was due in 1891, I believe I forfeiture of shares in mining enterprises, told him what amount was due. I did not and all other hazardous undertakings. There make any tender to him at that time." Domust be power to cut off unprofitable mem- remus, Sr., said Fred was not in, and "if

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I would come in in the afternoon, no doubt ring plaintiff to his son, did not delegate, and I would find him and fix matters up. The did not mean to delegate, any authority to next morning I saw Fred Doremus. I went Fred to waive the forfeiture, or to do any there at that time expecting to get every- other act which would bind the company. thing all straightened up, and fixed up, and He was most careful to avoid doing so himreceipts, and I was rather surprised and self, and it is altogether unreasonable to disappointed from his conversation soon construe the facts and circumstances attend. after getting to his office; but his father, ing his actions in any other light. Being of as he said, would not do anything with opinion, therefore, that, at the time of the it-would not do anything with the mat- New York interviews, the plaintiff's policy ter of receipts.” Doremus, Sr., then came was forfeited, and null and void, and that it in, and said "that he proposed to take a was not revived, and that there was no act hand in this matter; that he would not al- of the company at any time ratifying the unlow his son to be bulldozed, nor the com- authorized conduct of its agent, and that pany either; and if we wanted anything there was no waiver of any rights by the from this company we would have to get it." company, it follows that the district court The tender of the $151 was then made and correctly granted the motion for nonsuit. peremptorily refused. “There was talk pre- The plaintiff's situation is precisely devious to this about the contract which I had scribed in the case of Ferebee v. Insurance with Mr. Fred Doremus; there had been a Co., 68 N. C. 11, where the court say: “The general talk about it previous to that time. plaintiff risked everything upon his private He knew the situation very well. I knew arrangement with Speed, and paid no attenhe knew the situation by conversation with tion to the warnings of the company. This him. I had told him the arrangements that was his misfortune, and he is now left to his were made, that I have testified to here. I action against Speed for damages, but has think that was at my interview with him in no claim upon a company with which he July. I explained as to the first premium, contracted upon certain conditions, which the second, and also the premium for 1891. conditions have never been fulfilled on his There was not much further conversation part, although he was [repeatedly] requested took place at this November interview.” to do so." The judgment is affirmed. Just before the notice that the policy had lapsed was presented, "he [Doremus, Sr.}

DE WITT, J., concurs. said: 'I don't remember anything about it. I don't know. I will go and see.' He went to the bookkeeper, and presently brought

(5 Wyo. 255) back that paper, and he says: “The book

CRAIN V. BODE. keeper says this lapsed in 1891. He laid (Supreme Court of Wyoming. March 20, 1895.) the piece of paper down on the desk. I read ATTACHMENT PROCEEDINGS-Debt nor Due-Prethe paper. I said: “No; I guess it cannot

MATCRE ENTRY OF JUDGMENT- WAIVER. be lapsed. It isn't due until the 30th of this

1. Under Rev. St. & 2917, providing that in

attachment proceedings upon a debt not due the month, but, inasmuch as I was here, I

plaintiff shall not have judgment before the claim thought I would step in and straighten the becomes clue, the court has no jurisdiction to enmatter up, and, whatever balance there was, ter judgment in attachment proceedings upon a pay it.' He said: 'It is a matter I have not

note till the expiration of the days of grace al.

lowed thereon by Sess. Laws 1888, c. 70, $ 62. paid much attention to.' He said: “Fred

2. Under Rev. St. 882912–2918, providing will be here shortly. He will fix it up. If for attachments upon debts not due, the court there is any mistake about it, will correct it, must first make an affirmative order allowing the

attachment. no doubt.' He said Fred had been attend.

3. Error in rendering a judgment in attaching to those matters, and if there is any mis- ment before the debt became due is not waived take he will make it all right; whatever he by defendant's offer, on the day of the rendition does will be satisfactory.' He says, 'I don't

of the judgment, to pay the debt. understand this; but he says, 'If you will

Error to district court, Laramie county; wait, I think he will be in shortly.'"

Richard H. Scott, Judge. After carefully considering all the state- Action by Jennie W. Crain against Rose R. ments made to the plaintiff by the general Bode, before a justice of the peace, in attachagent, we find them insufficient to establish ment upon a certain promissory note before a waiver of the forfeiture of the policy. maturity, under the provisions of the Code And it is significant in interpreting the of Civil Procedure. Attachment sustained words, and the whole conduct of Doremus, upon the hearing of a motion to dissolve, and Sr., that the tender of plaintiff was always, judgment upon the note before its maturity. and even aggressively, refused; that plain- | Reversed in the district court on error. Judg. tiff was always told, after investigation by ment of reversal affirmed. Doremus, Sr., that his policy had lapsed; W. R. Stoll, for plaintiff in error. Frank that the receipt for the premium was never H. Clark and Ralph E. Esteb, for defendant offered to him; and that no recognition of in error. any agreement between plaintiff and Fred was ever made in behalf of the company. GROESBECK, C. J. An

action It is plain, too, that Doremus, Sr., in refer- brought before H. Glafcke, a justice of the

was

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