As the judgment for plaintiff was unanimously affirmed by the Appellate Division, the facts are conclusively settled in her favor.
The Hanover Fire Insurance Company in 1893 was represented at Jamestown, N.Y., by its agents, Horton Brothers, who issued a policy to the plaintiff, dated December 20th, 1893, insuring certain personal property for the term of one year. The property was destroyed by fire on the 29th day of December, 1894.
The plaintiff's contention is that the policy was duly renewed prior to its expiration, December 20th, 1894; the defendant insists the policy expired on the last-named date.
The jury have necessarily found that a verbal contract, renewing the policy for another year, was made between the plaintiff's husband, acting as her agent, and one of the firm of Horton Brothers about ten days before expiration; that plaintiff was to pay premium in not more than thirty days and call and get policy.
The learned counsel for the defendant raises his first question of law, based on this finding of fact, to the effect that the agents of the company had no authority to make a verbal contract to continue a risk beyond the expiration date.
The defendant read in evidence the certificate of appointment making Horton Brothers its agents at Jamestown, and among other powers therein conferred was "to countersign, issue and renew policies of insurance."
The oral contract is the ordinary and usual agreement which an insurance agent makes on the eve of a policy expiring that *Page 555 he will renew it. The question in this case is not whether the agent can enter into a parol contract of insurance that will bind the principal, but rather, having agreed orally to continue an existing contract of insurance and issue a renewal or policy therefor, the defendant is bound thereby.
This court considered the question in Ellis v. Albany CityFire Insurance Co. (50 N.Y. 402) and held the parol contract valid. In a later case (Angell v. Hartford Fire Ins. Co.,59 N.Y. 171) the authority cited was followed, and it was further held that the payment of premium, at the time of the oral agreement, is not necessary to make the contract binding on the company; if a credit be given by the agent it is equally obligatory. (Trustees, etc., v. Brooklyn Fire Ins. Co.,19 N.Y. 305; Audubon v. Excelsior Ins. Co., 27 N.Y. 216.)
In Ruggles v. American Central Ins. Co. (114 N.Y. 415), this court, in the Second Division, upheld the oral agreement from the date of the conversation. (See, also, the recent case ofHicks v. British American Ins. Co., 162 N.Y. 284.)
The matter of parol agreement by a local insurance agent was quite recently before this court in a case involving the oral promise of the agent made with the transferee of the property and policy to go where the latter was kept by a third person and make the required indorsement. The agent failed to keep his promise, a fire occurred, and it was held that the transferee could recover from the company the amount of the insurance as damages for the breach of such oral agreement. (Manchester v. GuardianAssurance Co., 151 N.Y. 88.) The line of cases cited was there approved.
In the case at bar it follows that the oral agreement of defendant's agents to renew plaintiff's insurance was a contract they were legally competent to make, and the recovery thereon must be sustained.
The defendant further insists, however, that there was legal error in allowing, over its objection and exception, certain questions to be propounded to the agents, Horton Brothers, on cross-examination, whereby it was sought to lay the foundation for their collateral impeachment. *Page 556
Charles L. Horton was asked if he knew Charles H. Wickes, a real estate man residing in Jamestown, and whether he had a talk with him about the fire a week or ten days after it occurred. The witness stated that he knew Wickes, but recalled no conversation. This question was then put to him: "Q. Did he ask you, referring to this fire, if they were settling with Squier's people for their loss, or that in substance, and did you reply that you had written the adjuster and you thought when he got here the loss would be settled and paid, or that in substance? A. I did not."
Plaintiff placed Wickes on the stand, who stated that he knew Horton and had a talk with him about the fire. This question was put to him: "Q. And did you ask him if they, the insurance company, were settling with Squier's people for their loss, or that in substance, and did he reply that he had written the adjuster and he thought that when he got there the loss would be settled and paid, or that in substance? A. He did."
Walter B. Horton, the other member of the firm of Horton Brothers, when under cross-examination, was asked this question: "Q. In that conversation did you say or did Mr. Rich say to you in the presence of Mr. Wells, `It is a hard blow for Mr. Squier or Mrs. Squier,' and ask you if he had got to lose this amount, and did you reply, in substance, that you thought not, that you thought you could get it for him? A. What you said I didn't say at all. The substance is different. I didn't say that in substance."
Wells was placed upon the stand, and, on being duly questioned, testified that Walter B. Horton stated to him substantially that which is embodied in the above question.
The defendant's counsel objected to the question asked Charles L. Horton, on the ground that it was incompetent, immaterial and "any declaration made by this witness that an adjuster would come or pay a loss if the company was not liable for a loss would not bind the company."
The same objection, in substance, was interposed to the question asked Walter B. Horton. *Page 557
It is very clear, from the form of these objections, that the counsel for the defendant misapprehended the object of asking these questions. The oral contract had been proved by plaintiff's counsel when the case was with him and he now sought, not to adduce additional evidence as to the making of the contract, but to lay the foundation for proving that the agents had in conversations subsequent to the fire made statements as to facts involved within the issues wholly inconsistent with the position assumed by them in defending this action and as witnesses at the trial.
The rule is well settled that a witness may be asked on his cross-examination, with a view to his credibility, whether he has not made statements touching a material issue in the cause at variance with his testimony in chief, and if he denies having made such statements, the party against whom he is called may show, by other witnesses, that he did make them. (Patchin v.Astor Mutual Ins. Co., 13 N.Y. 268; Schell v. Plumb,55 N.Y. 592; People v. Schuyler, 106 N.Y. 298; 1 Greenleaf's Ev. [16th ed.] §§ 461f, 462 et seq.)
Applying this rule to the facts in the case at bar, it is clear that the questions asked Horton Brothers under cross-examination bore strongly upon their credibility by showing declarations made by them after the fire at variance with their evidence at the trial and their general position as agents of the defendant.
We have this situation: The plaintiff insisting the policy of insurance was seasonably renewed, and the defendant asserting, through its agents, that the risk on the property terminated by lapse of time nine days before the fire.
In other words, at the time the property was destroyed, the defendant company rested under no legal obligation to pay the loss, and the plaintiff might have, with equal propriety, sued any other insurance company in the state of New York.
This being so, there was but one position that Horton Brothers, the agents of the company, could consistently assume and maintain, to wit, the positive denial of liability. It was, however, established by disinterested witnesses at the *Page 558 trial, after the foundation had been duly laid for the evidence and the attention of Horton Brothers sharply called to the precise point involved, that Charles L. Horton said shortly after the fire that he had written the adjuster and thought when he got there the loss would be adjusted and paid.
Walter B. Horton, under like circumstances, stated that he did not think plaintiff would lose the amount, and that he thought he could get it for her.
These statements were inconsistent with the position of no liability on the part of the defendant, and if the jury believed the disinterested witnesses who swore to them, they were justified, in the exercise of their honest judgment, in rejecting the entire evidence of Horton Brothers.
The judgment appealed from should be affirmed, with costs.
PARKER, Ch. J., MARTIN, VANN, CULLEN and WERNER, JJ., concur; GRAY, J., not voting.
Judgment affirmed.