Page:Federal Reporter, 1st Series, Volume 4.djvu/775

PDTNAM ». OOMMOHWEALTH INS. CO. ���761 ���bim up to the plaintiff as such. It knew, tiben, that those certiiicates had been put ont and taken as valid ; and it must have known that it was so because Harmon thought, and the plaintiff thought, — and that both had reason.from the conduct of the defendant, to think, — that Harmon was the duly- authorized agent of the defendant. It is toc late, after let- ting those two go ont as valid, and the third like certificate bas been issued and premium paid, for it to say that Har- mon is not the agent of the defendant therein, and that he is the agent of the plaintiff. The defendant must have some living, sentient touch of tjiose doing business with it ; and when it reposes confidence in the acts therein, and gives him discretionary power to bind and loose, it ia ,idle to say that he is not its agent thereto. The law is too severe to brook such . an absurdity ; nor will it hold the plaintiff so strictly to the contract he made, as to permit the defendant to ignore it and take his agent as its agent, and yet make him suffer for ail the shortcomings of that person -while acting between them, and while under authority from the defendant to act for it. Should it be granted that Harmon was the agent of the plaintiff, even then cornes in the rule that one employing the agent of another eannot take advantage from the acts and omissions of that agent to the harm of its principal. It is a rule that if one principal to a contract deal surreptitiously with the agent of the principal, it is a fraud upon the other principal. The def rauded one, if he comes in time, is entitled, at his option, to have the contract rescinded; or, if he elects not to have it rescinded, to have such other adequate relief as the court may think right to give him. P. e S. P. Tel. Co. V. Ind. Ruh., Gut. Pereh. e Tel. W. Co. 10 Ch. Appeal Cases, 526. The principle should be applied, in the case in hand, to the aid of Whited. The case, then, is that of the holder of a policy asking for a renewal of it, and maldng known to the agent of the insurer the facts which have made or will make a breach of some of the conditions in it, and thereupon receiving from that agent a written renewal certifi. cate, after payment and reeeipt of the premium, and having from him a promise that he would < make it ail right.' The ����