On the first trial of this action the plaintiff recovered a judgment which was rendered by the Supreme Court on appeal, and a new trial ordered. On the new trial the plaintiff was nonsuited; and on his motion for a new trial on exceptions, the General Term gave judgment against him upon the nonsuit. The appellant seeks on this appeal to review the decision of the Supreme Court in reversing the first judgment, and ordering the new trial. This he has no *Page 624 right to do. Having proceeded to the new trial, he is precluded from reviewing the decision of the General Term by which it was ordered; and this court is limited in its review of the case to errors alleged to have arisen on the second trial, and in the proceedings subsequent thereto.
The exception to the nonsuit on the second trial presents the question whether there was any evidence proper for the consideration of the jury, tending to establish facts upon which the plaintiff was entitled to ask a verdict at their hands. The court held, that there was no such evidence; and in this, I think, under the decisions of this court, the learned justice erred.
Boggs was a general agent of the defendant. It is settled by this court that he had authority as such agent to waive the condition of the policy requiring prepayment of the premium; and his act, in so doing, would be binding on the company, whatever his secret instructions might have been. (Sheldon v. TheAtlantic Fire Ins. Co., 26 N.Y., 460.) In the case just cited, it appeared that Godfrey, the assured party, resided in Oswego county; that he called at the office of an agent at Rome to take a policy on the property, but not finding the agent in, left an application. A few days afterwards, the agent sent a policy to him by mail, at an advanced rate of insurance from that contemplated by Godfrey at the time of his application, and accompanied it with a letter, stating the fact of the advance and the reason for it, and concluding thus, "should you decline the policies, please return them by return mail; or if you retain them, please send the amount, $29.50." One of the conditions of the policy was this, "no insurance, whether original or continued, shall be considered as binding until the actual payment of the premium." Godfrey retained the policy, but did not send the premium. The property was burned several weeks thereafter. Nothing else occurred between Godfrey and the agent before the fire; and the case turned upon the effect of the letter of the agent, and the subsequent conduct of Godfrey. The plaintiff was nonsuited. This court held, that there was a waiver of prepayment, and that the policy *Page 625 became effectual upon the insured, retaining and thereby accepting it, or at all events, that the question should have been submitted to the jury. It is difficult to perceive any substantial distinction between that case and the present. Of course, the plaintiff is entitled to have the evidence considered in the most favorable view that could fairly have been pressed upon the attention of the jury, and is not restricted to any sharp construction that defendant might have claimed for it. It appeared that Boggs, as a general insurance agent, had for several years been accustomed to insure the property of plaintiff. On the 2d day of August, 1855, four policies, issued by him on the plaintiff's property, expired. As to several of the companies issuing those policies, the agency of Boggs had terminated. On the 3d of August, he made out, without any consultation with plaintiff, two policies, of which the policy in suit is one, for the same amount as the four, and obviously designed to take their place in companies for which he was still agent, dating them the 2d day of August. These policies he took to the store of plaintiff, who was then out of town. He left them, as he says, with the clerks of plaintiff, saying to them that the policies in the four companies had expired, and he had made policies in the two companies, and would leave them on condition that as soon as Mr. Wood returned, and when he did return, either to return the policies if he did not wish them, or send the premium to him. The premium was to be paid as soon as Mr. Wood returned. One of the clerks who was called for plaintiff, states this transaction thus: "I was there when the policy was left; I think the person who left it asked to have the premium sent down; I don't remember anything else, except that he said they had formerly been in four different companies, and he had placed them in two companies; I don't remember anything said about returning the policy; he was there only a few minutes; I heard the whole conversation;" and another part of his testimony he said, "I don't remember much of the conversation at that time; can't state the exact words that were said by the party who left the policy, or what I said in reply." This witness was indistinct and *Page 626 uncertain in his recollection, and yet the jury may possibly have considered him entitled to greater weight than the agent who testified to the condition with an emphasis not altogether consistent with his subsequent conduct, or with the previous dealings of the parties.
It appeared that the agent sent his clerk three times afterwards for the premium; at one time the plaintiff was out, at another he was engaged and requested the clerk to call again, and at the last, which was the day previous to the fire, he directed his clerk to make a check for the premium, but as the clerk commenced to do so, countermanded the direction, and said (as he himself testified) that he wished to see Boggs about a loss on another policy, and he would come down himself and bring the check with him.
On none of these occasions, was the clerk of Boggs sent for the policies, nor did he call for them. It was the premium only that he sought to obtain. The plaintiff meantime retaining the policies, and putting off the payment of the premium as above stated.
Now, is it not very obvious from this evidence that if the company were suing for the premium, the plaintiff could not evade its payment under the pretext that he had not accepted the policy? He had retained it several days with knowledge of the change that had been made from his former policies. When asked for the premium, instead of declining to pay and refusing the policy, he had asked further time to pay, by requesting the clerk to call again for it, and finally when the clerk did call, had promised to come down himself to see Mr. Boggs on other business and bring with him a check for the amount. I think, upon this evidence, no court would hesitate to order a verdict against him, on the question whether he had accepted the policy so as to bind himself to pay the premium.
It is apparent that the anxiety of the agent was chiefly directed to have the change which he had made in the insurance, without the consent of the plaintiff, ratified, rather than to have the premium paid in advance, for he seems to have expressed no dissent to the requests of plaintiff to repeat the *Page 627 calls for the premium, nor to have taken any steps to recall the policies or to notify the plaintiff that he regarded them as invalid for want of prepayment of the premium. And he himself testified that he gave no special notice to Mr. Wood that the policy would be canceled if the premium was not paid.
I am unable to see why the evidence in this case to show an acceptance, on the part of the insured, of the policy, and a waiver of advance payment of the premium, was not stronger than in the case of Sheldon v. The Atlantic Fire Ins. Co., above cited, for in this case there was an actual acquiescence in the requests of the insured for delay in payment of the premium when called for, which is a feature wholly wanting in that case.
The court rejected all evidence tending to show the previous course of dealing between Boggs, the agent, and plaintiff, not only in respect to policies from other companies, but of defendant also. I confess I am at loss to see why it was not competent for plaintiff to show that Boggs had constantly given him credit on the policies of this company, both as tending to establish his authority to make the waiver and shedding light on the conduct of the agent in this particular transaction. If he gave any credit for the premium, necessarily he waived advance payment; but he did acts in respect to it which it is said should be construed as manifesting an intent to give credit. In what better light can these acts be read, with a view to ascertain the intent of the parties, than in that of their prior dealings, in respect to the same kind of business. Certainly it would have been a strong circumstance against the theory that credit was given, if the agent could testify that he had never given plaintiff credit in previous dealings, but at all times had demanded and received advance payments while acting for defendants. And so I think it would be forcible evidence to show that, in a course of several years' dealings between plaintiff and defendants, the agent had uniformly waived advance payment of premium by giving brief credits, and calling for the premiums on occasions subsequent to the delivery of the policy. *Page 628
I am of opinion that the case should have been given to the jury, and that there was error in excluding the evidence above alluded to; and for these reasons the judgment should be reversed, and a new trial ordered, with costs to abide the event.
The Chief Judge and Judges DAVIES, WRIGHT and BROWN concurred in the foregoing opinion of Judge PORTER.
DAVIS, J., read an opinion for reversal, in which Judges POTTER and CAMPBELL concurred.
Judgment affirmed with costs. *Page 629