' cnorzkmrm v. accrnrzwr ms. co. or Noirrn Amamca. 27
V-Hallack & Raymond, who, however, agreed to give credit to the 1st of
INovember. The policy contains a provision that it shall not be in force
until actual payment, and that no agent has authority to change the
written terms of the policy. r In reference to that, while there are au-
thorities which say that that is conclusive, and that if the money is I
not actually paid by the insured there is no binding contract of insur-
ance, I do not think that that is good law. The company gives the gen-
eral agent blank policies, with authority to consummate the contract.
The company, the principal, is at a distance, and has no voice in its
consummation, it being wholly executed between the general agent and
the insured. Under those circumstances the general agent may, not-
withstanding the letter of the policy, give credit and deliver the policy,
and it is in force during the duration of that term of credit. Such au-
thority, however, belongs to a general agent having power to complete
the contract, and does not extend to a mere subagent or soliciting agent,
who is charged with only the matter of collecting premiums or soliciting
insurance. Now, in this case, the negotiations were carried on entirely
by Mr. Terpenning, a soliciting agent of the defendant, employed bythe_
general agents here. He solicited the insurance, carried to the general
agents the proposition that the insured would take the policy if he had a
credit to the lst of November following. That proposition was accepted by
the general agents, and the policy placed in Mr. Terpenning’s hands, with
instructions to deliver it, and collect the premium. He had no authority
to change the terms of the contract, or to make any new arrangement with
the insured. His instructions were to deliver the policy, and collect the
premium. Beyond that he could do nothing. Now, as I said to coun-
sel yesterday, the bald tact stands patent and unconcealed that here the
insurance company, when it has never received a dollar of premium, is
asked to pay $5,000 to the beneficiary of a man who never paid such
premium. Of course, when such a fact sta.nds out conceded, the natural
inquiry of every fair and reasonable man is, why should it pay? It is
the duty of a judge to try to lift a case above any mere technicality,
and place it upon the broad plane of absolute justice,—right and wrong
between man and man; and a party should not be called upon to pay
when it basin fact received nothing, unless·there is some plain, clear,
and positive reason upon which that demand can be rested.
Under the terms of the credit given, Mr. Cronkhite, the insured, was
to pay the premium on the 1st of November; and the contention is that
Mr. Terpenning and Mr. Cronkhite, on the 1st of November, went to the
office of the general agents, about 1 o’clock in the afternoon, and met a
gentleman there who had been at the time of the issuing of the policy
such general agent, and was informed by him that he was no longer the
agent, but that Mr. McGaffey was, and that they would have to see him.
They waited there some time, and, Mr. Cronkhite feeling ill, they went
out, and, after they had left, Mr. Cronkhite went home, telling Mr. Ter-
penning to goback and pay the premium, and that he would thereafter
settle with him. Terpenning went back, he says, two or three times, tc
make payment, but failed to tind the new general agent, Mr. McGatfey.