On Petition for a Rehearing.
Crumpacker, C. J.It is argued with much force and plausibility by counsel for appellant, in their brief, in support of the petition for a rehearing, that this court erred in *504deciding that appellant was not the agent of the insurance company in receiving payment of the premium. Counsel concede that if he was not such agent, and the company was not bound by the payment to him, the decision is right and ought to stand. There is a well recognized distinction between insurance agents and brokers in their relations with insurance companies. A broker has no general authority to act for an insurance company, but the intrusting to him of a policy issued through his procurement, for delivery to the assured is, ordinarily, held sufficient to constitute him the agent of the company for the purpose of collecting the premium, and payment to him under such circumstances will bind the company. This distinction was recognized in the case of Indiana Ins. Co. v. Hartwell, 123 Ind. 177, wherein the court declared : “ The authority of the agent is recognized in advance, while in the other it is not recognized until what has been done is accepted and adopted by the insurance company.” The agency of the broker is often established upon the doctrine of ratification. There may have been such a course of dealing between the company and the broker as to give the latter the character of an agent in general, by legal implication, as was asserted in the Hart-well case, but in the absence of such implied authority the agency of a broker is special and limited; and while the fact that the broker is intrusted with a policy for delivery to the assured usually gives him authority to collect the premium thereon, that fact is not conclusive evidence of such authority. An insurance company may send a policy to a broker for delivery, and still withhold from him authority to receive payment of the premium, in which event he would .not be the company’s agent for that purpose, and payment to him would not bind the company, provided the assured had notice of his restricted authority. . But if the assured did not have such notice, he would be justified by the broker’s possession of the policy, in treating him as the company’s agent to collect the premium.
*505Having invested him with the indicia of authority, upon familiar principles, the company would be forbidden to repudiate his agency in a controversy with one who was led to treat with him as an agent. In the case in judgment appellant informed appellee that no company for which he was agent would carry the risk, but he undertook for appellee to place it with another company. He did not at any time claim to be an agent of the company which undertook the insurance. Appellee signed the application, in which the policy was directed to be sent to appellant for'delivery, but the policy contained a condition requiring payment of the premium to be actually made to the company at its home office at Kittanning, Pennsylvania, or the insurance would be inoperative.
The court was authorized to conclude that appellee was fully eogoizant of such condition before he paid the premium to appellant. The very thing which might, otherwise, have conferred authority upon appellant to collect the premium forbade its payment to him, and appellee knew it. It is true the company agreed to pay appellant a commission upon the premium, and that is a strong circumstance tending to establish agency, but it is not conclusive. Real estate agents receive commissions for procuring purchasers for real estate, yet that fact does not, necessarily, give them authority to receive payment of the purchase-money from the vendee.
There was evidence fairly tending to prove that appellant did not assume to act as agent of the insurance company, and that he had no authority to collect the premium upon the policy in question ; also, that appellee did not treat with him as such agent, and knew that he was destitute of authority to collect the premium, but intrusted the money to him as his own agent, to transmit to the company. There was some conflict in the evidence, and differently constituted minds might reasonably have drawn different inferences from it, but the function of weighing the evidence rests en*506tirely with the trial court. Iu the Hartwell case, in view of the relations of the brokers with the insurance company, the court deduced the legal inference of agency respecting the particulars involved in that controversy. In this case, in view of different relations, another conclusion is reached. The same principles control the conclusions in both cases.
Filed April 12, 1892; petition for a rehearing overruled Dec. 14, 1892.The petition is overruled.