The Liverpool and London and Globe Ins. Co. vs. Wyld and Darling.

Collett v. Morrison (1); Jones v. Provincial Insurance Company (2); Franklin Fire Insurance Company v. Hewett (3).

It cannot either be argued that the Respondents ever agreed to accept a policy on stock in the original building alone. If the agent had thought the additional premium was only for increased danger, he would have given a receipt to that effect as did the Royal, and not a renewal receipt, thinking it a new insurance. In point of fact, the Appellants contend that they had a right to accept the whole risk; to take the premium and retain it, and yet to so frame their policy as to escape liability. Now the policy, not being in accordance with the previous actual agreement between the parties, it could not supersede the interim receipt.

Earl Beauchamp v. Winn (4); Xenos v. Wickham (5); Cooper v. Phibbs (6).

As to the power to reform a policy after the loss, the learned counsel referred to Phoenix Ins. Co. v. Gurnee (7); Phoenix Ins. Co. v. Hoffeums (8); Manhattan Ins. Co. v. Webster (9); Philips on Insurance (10); Collett v. Morrison (11).

And as to the effect to be given to the finding on the facts by the Judge who heard the evidence and tried this cause in the first instance, to "The Alice" (12).

Mr. Bethune, Q. C., in reply :

The meaning of the interim receipt is that the party is insured until another contract is agreed upon. The Company could not have returned the premium, for Mr.

(1) 9 Hare 173 (see page 175); (2) 16 U. C., Q. B., 477; (3) 3 B. Monroe, 231; (4) L. R. 6, II. L., 324; (5) L. R. 2, H. L., 296 & 324; (6) L. R. 2, H. L., 170; (7) 1 Paige's N. Y. C. R., 278; (8) 46 Miss., 655; (9) 59 Penn., 227; (10) 5th edition, p. 71 and 72, ss. 116 & 117; (11) 9 Hare, 173; (12) L. R. 2, P. C., 245.

The Liverpool and London and Globe Ins. Co. vs. Wyld and Darling. Smith knew nothing more than that the risk had been increased in consequence of the cutting. The language used in the N. B. on the policy is clear and positive, and yet the Respondents keep the policy for six months; and it is only after the loss and after an action on the policy has been decided against them that they come and ask to have the policy reformed. The mere misinterpretation cannot affect this matter unless the Court is satisfied that the mistake is mutual.

June 28th, 1877.

The CHIEF JUSTICE:

The first question to be considered is, whether Hooper, the Defendants' agent, had authority to bind the Company by granting interim receipts on taking risks for them, and as to alterations made requiring additional premiums on the substitution of one policy or interim receipt for another. Mr. Smith, the Defendants' secretary and chief agent in Canada, said: "Hooper's duties were to receive proposals or applications for insurance and give interim receipts subject to confirmation by the Montreal office; if not confirmed by that office, the risk was to be cancelled and the premium returned less the amount earned by the Company. His duty was to receive notices of changes in the risk; to inform the Montreal office of them; and his action in these matters was subject to the approval of the head office. On cross-examination, he said changes in the character of the risk take place frequently during the course of the risk, and changes in the stock and its location; and, in these cases, the local agent has the same power

The Liverpool and London and Globe Ins. Co. vs. Wyld and Darling.

as in the acceptance of a risk in the first instance. If what he does is not approved of, the Company returns the premium less the amount earned. The agent has the same power to make alterations or modifications of an insurance, as he has to make an original insurance. In all cases the agent has a power subject to the control of the head office. The agent has this power of modification, pending the issue of the policy, and Plaintiffs were certainly insured up to the 23rd September. It was within his power to assent to the continuance of this insurance, notwithstanding the change notified by the letter of the 10th of August. He did not make us aware of the fact that a part of the property insured was moved; it was his duty to have done so, &c." * * *

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"If Mr. Hooper had insured deliberately the goods "in these buildings, as one risk, it would have been 'binding as long as this receipt was in force; that is, "until the receipt is cancelled in some way or other "the risk is binding, nothwithstanding it is in violation "of our standing rule as to splitting up the risks."

Mr. Ball, Defendants' agent and inspector, stated that he placed Hooper in charge as agent at Hamilton, and gave him instructions as to his powers and duties.

That Mr. Smith had stated the powers and duties of Hooper, as he (Ball) informed him they were at the time he gave him his instructions.

In addition to this, if the fact be, as is not denied, that Hooper was the Defendants' agent to solicit and receive insurances, and to take the monies therefor, and grant interim receipts, which, on the face, shewed the party paying the money was to be considered insured until the determination of the board was notified, there are decided cases, both in England and in the United States,

The Liverpool and London and Globe Ins. Co. vs. Wyld and Darling.

which shew that the acts of such an agent, relating to the taking or changing of risks before the issue of a policy, would be binding on the Company.

In what position did the Plaintiffs and Defendants stand in relation to the insurance on the stock of goods owned by the Plaintiffs, which were contained in the premises on King Street, in the town of Hamilton, on the 24th September, 1872, and before the issue of the policy granted to Defendants, bearing date 9th day of August, 1871 ?

The application signed by Plaintiffs, per J. J. Jermyn, is dated the 9th August, 1871, and is for insurance against loss or damage by fire by Defendants' Company on the usual terms and conditions of the Company's policy, in the sum of $6,000 for the term of one year, commencing the 9th day of August, 1871, at noon, on the property specified, to wit: on their stock of dry goods, chiefly clothes and tailor's furnishings contained in a stone building covered S. & M., marked No. 1 on diagram, and owned by Irvine. Amount insured, $6,000; rate, 623c.; amount of premium, 37.50; S. T. No. 272. On the same day, 9th of August, Hooper, in a letter addressed to Plaintiffs, certified that he had received the $37.50 premium for insuring that stock for $6,000 for a year in S. T. 272, and stated that if at the expiration of four months they wished to cancel the policy they might do so, and he would refund the money for the unearned period. The cheque for the premium of $37.50, payable to Hooper, appears to be dated the 10th of August. Whether this date is erroneous or not is, perhaps, of little consequence. On that very day (the 10th of August) Plaintiffs wrote Hooper as follows: "We beg to advise you that we "have added two flats over Mr. Williams' store, next

The Liverpool and London and Globe Ins. Co. vs. Wyld and Darling.

"door, to our former premises, and that part of our stock "is now in these new flats." What is the proper effect to give to this notice. It was given within twenty-four hours of the date of the application; had reference to the same goods and the same premises; and it was well known, both to Plaintiffs and Defendants' agent, that no policy at that time had been issued on the application. The interim receipt only had been given. The reasonable view to take was, that the Company would, as to the policy they were about to issue, make it to cover the goods as the premises were when the last notice was given on the 10th August. If the Company required a payment of increased premium, such increase would be for the whole year. It would not occur to any one that the premium for 364 days would be at one rate, and for one solitary day at another and less rate. It seems to me to be absurd to suppose that either Plaintiffs or Hooper thought, that after the letter of the 10th of August, they were to treat the matter in any other way than as virtually a new application for insurance on their goods in the premises as they were on that day. Combining, then, the letter of the 10th of August with the application of the 9th, it would read as follows: Application for insurance against loss or damage by fire, on the usual terms and conditions of the Company's policy, in the sum of $6,000 for the term of one year, commencing on the 9th day of August, 1871, at noon, on their property specified, to wit: On their stock of dry goods, chiefly of cloths and tailors' furnishings, contained in a stone building, and the two flats over Mr. Williams' store added thereto as part of these premises, which stone building is covered with S. in M., marked no. 1 on diagram, owned by Irvine. It ought to be so read, for this was the true state of