This judgment should be reduced by twenty-five per cent, being the admitted amount of the commissions to which the defendant was entitled. While the insured was primarily liable for the premium, yet the agent made himself so on his express promise to pay if the policy should not be canceled. This was not answering for the debt, default or miscarriage of another, but was an original obligation to the- advantage of the agent, as he thereby sought to secure his own commissions on the contract. His denial of the agreement that he promised to pay the premium in the event that the insured did not, cannot be considered in this court, as the justice below must be deemed to have found that he in fact did make the promise.
The judgment should be reversed and a new trial ordered unless the respondent consents to a reduction of the judgment by the sum of four dollars and eighty-seven cents.
Present: Bischoee, P. J., Leventritt and Clarke, JJ.
Judgment reversed and new trial ordered unless respondent consents to a reduction of judgment by the sum of four dollars and eighty-seven cents.