Opinion
Argued January 20, 1876
Decided February 1, 1876
Samuel Hand for the appellant. James Emott for the respondent.
The case is presented by the record in a somewhat unusual manner. The learned judge arrived at a conclusion of law upon the assumption of facts which he did not find, and which afterwards, upon the settlement of the case, upon being specifically requested, he refused to find. The general fact thus assumed, but not found in the original report, and which the judge afterwards refused to find upon request, was, that the policy upon which the action was brought was returned for cancellation by mistake. This is the vital fact to sustain the plaintiff's action. The broker, Lord, must be regarded as the plaintiff's agent. The defendant's agents so regarded him, and were justified in regarding him as clothed with full authority to act for the plaintiff in procuring, modifying or canceling the policy in question, and his acts in respect to the policy are the same as if done by the plaintiff. (106 Eng. Com. Law, 381; 13 Wend., 518; 21 id., 279; Story on Agency, §§ 134, 135, 451, 452; 35 Barb., 463.)
The fact is found that, after procuring the new policy for $10,000 from the Amazon Company, Lord returned the policy in question to defendant, with instructions to cancel the same, and that it was accepted and treated as canceled. If this was not done by mistake, it was final upon the parties, and there is no ground upon which the action can be maintained. If the case had been presented upon the original report of the judge, there would have been some plausibility for asking this court to assume the same facts which the judge did. The general rule is, that every presumption is to be indulged in favor of a judgment, and that this court will not look into the evidence to find a fact for the purpose of reversing a judgment. A party who relies upon facts not found has ample remedy. He may request a finding as to such facts, and if they are conclusively proved, an exception to a refusal to find will be available; if not conclusively proved, a motion may be made to the court below to compel a finding, and a denial of such a motion is reviewable on appeal to this court.
We could not determine from the original report that the judge would have found a mistake in returning the policy, and it is difficult to see how we could have disturbed the conclusion of law upon the report itself. This difficulty is greatly increased by the refusal afterwards to find the fact when specifically requested. I understand this refusal to be tantamount to a finding against the fact, but if it is regarded as a refusal to find either way upon the question, then the remedy of the party was by motion to compel a finding one way or the other. It cannot be claimed that the fact was conclusively proved. A decision or verdict against the fact would not be set aside as against evidence. It depends upon the credibility of witnesses, and upon inferences to be drawn from the acts and conduct of the parties, as to which honest men might differ. We are called upon to assume the alleged fact of mistake to be true. I am not aware of any rule or precedent justifying this court in reversing a judgment upon a fact which a judge or referee has expressly refused to find, and which is not conclusively proved. Upon all the facts found, the result arrived at was clearly right. Nor do I find any error committed on the trial.
The evidence of a custom among those engaged in insurance business was not inadmissible. It was competent, at least, to explain the conduct of the parties, and how they regarded the verbal arrangement for an increase of premium, and the acts necessary to be done to consummate it. So the entries made upon Lord's books were competent as bearing upon the fact of a mistake, and upon his credibility and that of his clerks.
It is not intended to intimate an opinion adverse to the decision of the court below upon the assumption that a mistake was committed in returning the policy. The case is not in a situation justifying this court in assuming the fact, and it is therefore unnecessary to pass upon the legal question.
The judgment must be affirmed.
All concur.
Judgment affirmed.