Opinion
Appeal from a judgment of the Superior Court of Tulare County.
COUNSEL:
The agreement between the plaintiff and the local agent that the policy of insurance should be renewed was one for a renewal in futuro and not in presenti and was therefore not an effectual renewal. (Taylor v. Phoenix etc. Ins. Co ., 47 Wis. 365; O'Reilly v. Corporation etc ., 101 N.Y. 575; Idaho Forwarding Co. v. Fireman's Fund Ins. Co ., 8 Utah, 41.) If it be conceded that, as between plaintiff and the local agent Byrnes, it was intended to make a contract of insurance, Byrnes had no power to bind the company thereto, and, therefore, what was done by him did not bind the company. (Morse v. St. Paul etc. Ins. Co ., 21 Minn. 407; Critchett v. American Ins. Co ., 53 Iowa 406; 36 Am. Rep. 230; Armstrong v. State Ins. Co ., 61 Iowa 215; New York etc. Ins. Co. v. Johnson , 23 Pa. St. 73. See, also, Wilson v. German etc. Ins. Co ., 14 N.Y. 418; Merserau v. Phoenix etc. Ins. Co ., 66 N.Y. 274; Tate v. Citizens' etc. Ins. Co ., 13 Gray, 79; Harrison v. City etc. Ins. Co ., 9 Allen, 231; 85 Am. Dec. 751; Markey v. Mutual etc. Ins. Co ., 103 Mass. 78; Cooper v. Insurance Co ., 7 Nev. 122; 8 Am. Rep. 705.)
T. C. Van Ness, and Bradley & Farnsworth, for Appellant.
Daggett & Adams, for Respondent.
The verbal contract for renewal of the policy in question was not a contract in futuro, but was a valid consummated contract. (11 Am. & Eng. Ency. of Law, pp. 280-83; Westchester Fire Ins. Co. v. Earle , 33 Mich. 143; Wood v. Rutland etc. Ins. Co ., 31 Vt. 552; Day v. M. & T. Ins. Co ., 88 Mo. 325; 57 Am. Rep. 416; Renshaw v. Missouri etc. Ins. Co ., 23 Am. St. Rep. 904; Campbell v. Am. etc. Ins. Co ., 73 Wis. 100; Home Ins. Co. v. Adler , 71 Ala. 516; 5 Lawson's Rights, Remedies, and Practice, sec. 2044; Hay v. Star Fire Ins. Co ., 77 N.Y. 235; 33 Am. Rep. 607.) The agent had authority to renew the policy and bind the company by such renewal. (See Harron v. City of London Fire Ins. Co ., 88 Cal. 16; Farnum v. Phoenix Ins. Co ., 83 Cal. 257; 17 Am. St. Rep. 233; Wheaton v. North British etc. Ins. Co ., 76 Cal. 420; 9 Am. St. Rep. 216; Union etc. Ins. Co. v. Wilkinson, 13 Wall. 234, 235. See, also, Palm v. Medina etc. Ins. Co ., 20 Ohio, 529; Krumm v. Jefferson Fire Ins. Co ., 40 Ohio St. 225.)
JUDGES: In Bank.
OPINION
THE COURT Byrnes, the local agent of defendant at Visalia, had no actual or ostensible authority to enter into a binding contract upon the part of defendant for the renewal of the policy held by plaintiff, and the proposal of plaintiff mad e to such agent for a renewal of said policy [36 P. 411] was, until communicated to and accepted by defendant, nothing more than a mere offer upon the part of plaintiff to renew such policy. The fact that the agent promised to communicate the offer to defendant, and did not do so until after the loss, while it might make the agent liable to plaintiff for the damage sustained by him growing out of such neglect, did not have the effect to create a binding contract for renewal between the plaintiff and defendant.
Judgment reversed.