I dissent and vote for reversal and a new trial.
Concededly, Sherwin was not the agent of the defendant on November 1, 1915, at the time of the transaction by which the defendant company has been held bound. The theory upon which this has been done is that he was a former agent and as such issued the policy and neither he nor the company gave any notice to the plaintiff Greentaner of the termination of his agency. It is plain that Sherwin had no intention of acting for the defendant at the time because, as he says, he was not aware or had forgotten that the defendant had a policy on this particular property, so that in all that he did and said he supposed he was speaking for the other companies which he represented which did have such policies.
Now, the question is whether the company is bound by the acts and promises of Sherwin because neither Greentaner nor his attorney Kinsey had been notified of the termination of the agency. The policy was issued to Lyman, the former owner. If the company owed a duty to give notice to anybody it would be to Lyman or to the plaintiff Pearson, the mortgagee, who had the custody of the policy. Nowhere in the record does it appear that both Lyman and Pearson *301did not have notice of the termination of the agency. Kinsey, the lawyer, did not represent Lyman. He says: “ I represented Mr. Greentaner and Mr. Smith in the matter.” It is true that Sherwin says when asked whether Kinsey was acting for Greentaner or Lyman: “ Well, I think perhaps for both of them. Lyman was here, and I think Mr. Kinsey was acting—and my impression at that time was that he was acting between them. Q. You had no knowledge—? A. I have no knowledge. Q. Excepting that he was acting for somebody? A. I saw Lyman here, either on my first or second call, while the trade was in course of negotiations.” This is all the testimony in the record on this subject, and it seems to me that it hardly supports the finding that Kinsey, the lawyer, was authorized to and did undertake to represent Lyman in reference to the insurance policies or anything else.
It was not plaintiffs’ position at the trial that the company was liable because it had not notified Lyman or Pearson of the termination of Sherwin’s agency, but because plaintiff Greentaner had had no such notice. It appears from a question put to Sherwin by Kinsey: “ Q. You in no way indicated to me or to any one in behalf of the assignees of the property that the agency had been changed? ” And he answered, “ I did not. It never occurred to me. I didn’t know that the Connecticut was involved in the fire.”
When Greentaner and his lawyer undertook to deal with Sherwin in reference to a policy with the Connecticut Fire Insurance Company, they should have ascertained whether he was its agent. They had never dealt with him before as its agent, and I do not see how the company was estopped from denying the agency because Greentaner and his lawyer learned from some source, or assumed, that he was agent, or even if Sherwin himself told him that he was.
Judgment affirmed, with costs.