I dissent. I do not think there is any question of ostensible agency involved in this case, and therefore it is wholly immaterial that the plaintiff did not exercise that degree of care and caution which he ought to have observed. Castleberry either was or was not the agent of the insurance company. I am satisfied that he was such agent, and this, too, independently of what any of the witnesses may have said upon the subject. That McBride was the general agent of the insurance company in this state I think is perfectly clear. (Kilborn v. Prudential Ins. Co., 99 Minn. 176, 108 N. W. 861.) That he could make Castleberry agent of the company (a) by virtue of the power implied by his contract of agency, and (b) by virtue of the fact that the custom which he observed in engaging in the so-called brokerage business was known to and approved by the company, is clear to my mind. (Civ. Code, sec. 3140.) That McBride did arm Castleberry with the necessary blanks to take plaintiff’s application and secure his medical examination and send him forth for the purpose is clear.
If Weidenaar had passed a satisfactory medical examination, there cannot be any doubt that the company would have issued *618a policy, and in that event plaintiff would have been insured by virtue of Castleberry’s agency in the transaction. If Castle-berry would have been the agent in the event plaintiff’s application had been accepted, he was no less the agent in securing the application, although it was not accepted, for its nonacceptance was not based upon Castleberry’s want of authority in soliciting the business. In procuring plaintiff’s application, I think Castleberry was the soliciting agent of the insurance company, and, as such, he had authority “to do everything necessary and proper and usual, in the ordinary course of business, for effecting the purpose of his agency.” (Civ. Code, sec. 3095, subd. 1.)
That the soliciting agent of this company had authority to accept payment of the first premium is equally clear. The blank applications furnished by the company disclose this fact, for the form of receipt to be given for such first premium is indorsed on every such application. I think it is a general rule that, “where the agent is authorized to accept the payment of premiums, he may exercise his discretion as to the mode of payment. He may, for instance, accept a note or a check, instead of the money.” (May on Insurance, see. 134.) The authorities in support of this principle are so numerous that only a few need be cited. (Michigan Mutual Life Ins. Co. v. Hall, 60 Ill. App. 159; National Life Ins. Co. v. Tweddell, 22 Ky. Law Rep. 881, 58 S. W. 699; Carson v. Jersey City Ins. Co., 43 N. J. L. 300, 39 Am. Rep. 584; Starr v. Mutual Life Ins. Co., 41 Wash. 228, 83 Pac. 116; Kilborn v. Prudential Ins. Co., above.)
I do not think that any significance whatever can be attached to the fact that plaintiff’s note was made payable to Castle-berry and Saunders, and that they negotiated it. The company is in no worse situation than it would have been, had the first premium been paid in cash and the money embezzled by Castleberry. The breach of trust on the part of an agent cannot determine the question whether a contract of insurance had been actually consummated or the company rendered liable for the acts of its agent. I think the judgment ought to be affirmed.