Page:Federal Reporter, 1st Series, Volume 8.djvu/199

BUS V. BOOEB WIIililAMS INS. CO. 185 �procured insurance af ter the date of this polioy, and insisteJ that this act avoided it, under one of the conditions in the poliey. The court ruled, for the purposes of the trial, that under the circumstances substantially here above stated; as I tinderstand, the poliey might be considered to insure the plaintiff as mortgagee, if the jury believed the facts to be as stated. A verdict was rendered for the plaintiff, which I afterwards set aside, holding that, as the poliey was written, there was a breach of the condition against further insurance by the assured, because Cole was the person referred to by those words. That action is still on the docket. This bill is filed to reform the poliey, alleging that it was issued to Gole by the mistake of Carter, who is averred to have been the agent of the defendants ; that there has been a loss and due proof thereof. It prays payment of the losB and general relief. I understand by the argument that no claini is made for the loss of the fumiture, though the bill is framed to ask for that also. The answer denies that Carter was ever the defend- ants' agent ; denies that he ever assumed to act as such, that he ever asked for other or different insurance from what he received, or that the plaintiff himself ever asked for a different kind of poliey. As to the loss and proof received, the answer is as f ollows : �"The defendant admits that the buildings insured by said poliey were destroyed by iire on the twenty-ninth day of July, 1875, but whether ^ithout fraud or net the defendant does net know; and, that Cole made a proof of loss in due form for the proof of his claim, making oath that he was entitled to recover of the defendant, which proof the defendant understands and helieves was forwarded to the plaintiff and adopted by him." �There is no doubt that Carter was a sub-agent of Staniels, the general agent of the defendant company, with authority to forward applications, deliver policies, and recoive the premiums. This, ac- cording to the statute law of New Hampshire, makes him the agent of the company and not of the insured in framing the application. Gen. Laws, c. 172, § 3. �" If any company shall issue any poliey, upon an application prepared by a third person assuming to act as their agent or otherwise, they shall be afCected by his knowledge of any facts relating to the property insured as if t^ey were stated in the application." �I cite it from the General Laws for convenience, though they were compiled after the date of the poliey, being a re-enactment of the former statuts. The words "or otherwise" seem rather broaid. I suppose they mean that, although the third person should have made no special representations of agency, he is pro hoc vice the agent of the company rather than of the assared. Carter understood, I think. ��� �