(dissenting.) I am constrained to dissent from
the opinion of the majority, as to the error assigned upon that part of the judge’s charge in which he instructed (he jury that “ if you believe, from the weight of the testimony that Mr. Johnson, the acknowledged and acting agent of the company, so answered Mr. Whelpley and Dr. Woodruff, as fairly to lead them to believe that a policy had been executed and sent out of the office for Dr. Woodruff, such declaration is conclusive against the company upon the question of the execution and legal delivery of the instrument.”
This charge was attempted to be sustained on the argument, and could only be sustained upon the ground that, inasmuch as the action of covenant was resorted to in consequence of the representations made by the agent to the plaintiff and his attorney, it would amount to a fraud upon the part of the defendants afterwards to controvert the fact of the policy being actually executed, so that the *560case came within the principle of an estoppel in pais. To give this effect to Johnson’s declarations, it should have heen shown not only that he was the company’s agent, to make and issue policies, which lie undoubtedly was, but that he was also empowered to settle .losses and commence suits, which do not appear to have fallen within the seope of his authority. Had he in terms agreed that the company would admit that the policy had been duly issued, such agreement would not have been binding, and would not have-been conclusive against them upon the plea of non est factum; and I think it perfectly clear that what he could not do directly he could not do indirectly.
Johnson’s declarations to Whelpley and Woodruff were made after the policy was, or ought to have been issued, and after the loss occurred. As the secretary and treasurer of the company, intrusted with the power of issuing policies, his declarations on the subject, made at the time the policy was, or ought to have been issued, would have been competent,; but whether declarations made afterwards, while his agency continued, were admissible in evidence, may be considered as at least doubtful. 1 Greenl. Ev., § 113, n. That such declarations were conclusive, is not sustained by any well-considered authority. The authority most relied on for this proposition was the ease of Harding v. Carter, shortly referred to in Park on Ins. 4. But the clerk’s letier in that case, which was held to conclude the underwriters, was written by one intrusted with that particular duty, ami probably at the dictation of the principals. The text writers who refer to it do not consider this case as involving the question of agency. 1 Phill. Ev. 100; 4 Stark. Ev. 58 ; 1 Greenl., § 208.
In the case of Barry v. Foyles, 1 Pet. U. 8. 311, an individual who was the manager of a tan yard, and whose business it was to buy hides, gave written statements of the number delivered by the plaintiff, and of the amount due him on a settlement, and they were held competent evidence, upon the ground that they were admissions of *561an agent intrusted to do these acts. In State Bank v. Wilson, 1 Dev. 484, the acknowledgment of the cashier of a bank that a note had been paid, was received, and held prima facie evidence against the bank. And in Curtis v. Ingham, 2 Ver. R. 287, where the plaintiff bad loft the state, and had left the whole control of his business with his wife, her admissions in relation to the authority of a third person, to whom a payment was alleged to have been made as plaintiff’s agent, were admitted as evidence. These cases seem to go farther than any others, but they do not go the length of holding the admissions to have been conclusive. The ease of Coates v. Bainbridge, 5 Bing. 58, held the letters of an agent abroad, stating the receipt of money on defendant’s account, admissible, on the ground that defendant’s own letter was also produced, giving the agent directions as to the money. In the case of Bank U. S. v. Dunn, 6 Deters 51, it, was held that the president and cashier of a bank have no authority to agree that the endorser of a promissory note shall not be liable on his endorsement; it is not their duty to make such contracts, and they have power to bind the bank only in the discharge pf their ordinary duties. And in Bank of Metropolis v. Jones, 8 Peters 12, it was held that the officers of a bank have no authority to make assurances which would release parties to a note from their obligations.
The notice and preliminary proofs required in ca«es of loss may be waived by the insurers, and there are numerous eases where the acts of a board of directors, or the officers or agents of an incorporated company, have been held to amount to a waiver. Ang. L. & F. Ins., §§ 242-249. But all the cases, so far as I am aware, are cases where the hoard itself, or a committee, or some officer or agent, appearing to be intrusted with the duty of settling for the loss, have done the acts. In Schenck v. Mercer Co. Ins. Co., 4 Zab. 448, the waiver was the act of the directors. In the case of Dawes v. N. R. Ins. Co., 7 Cow. 462, it was held *562that the president of a company had no power to waive the necessary proof. In the ease before ns it appears that Johnson was not charged with the duty of settling the loss or of defending the suit; and I am clear that he had no power, by admissions or otherwise, to estop (he company from controverting the fact that a policy had been sealed and delivered, and that for the error of the charge on this subject the judgment ought to be reversed.
As to the question of interest in the property insured, I concur with the judge who tried the cause, in holding that the insurers had no right of subrogation to any other security than the bond and mortgage of Price. Woodruff, being the assignee of that mortgage, which covered the building insured, had, as such, an insu,rabie interest in it, which he had a right to describe as his own property. The insurance was, in substance, an insurance to Woodruff of that mortgage debt, to the extent of the sum insured. Upon payment of that amount, it would seem that the insurers became entitled to an interest in'the mortgage, and became entitled to recover it of the mortgagor. Ang. L. & F. Ins., § 59. Even this right is not universally acknowledged, the Supreme Court of Massachusetts having held, after an elaborate review of the authorities, that a mortgagee who has insured the mortgaged property at his own expense and for his own benefit, is entitled, in case of loss before' the payment of the mortgage debt, to recover the insurance and the mortgage debt also. 7 Cush. 16, King v. State Mutual. Admitting it, however, to exist, as I think is most in accordance with the weight of authority and of sound principle, I see no reason for extending the insurer’s claim beyond the mortgage debt itself, so as to embrace collaterals which have no immediate connection with it. In my opinion, the insurers had nothing to do with the accounts, as between Ryerson, the assignor of the mortgage, and Woodruff, the assignee, and consequently had no claim on the collaterals held by the latter. It is clear that the mortgage debt remained due when the *563fire occurred and up to the time of the trial, so that Wood-ruff could at any time assign it to the insurers, and thus make them the creditors, and entitled to collect the money. There was, therefore, no error in this part of the charge.
For affirmance — The Chancellor, the Chief Justice, and Judges Vredenburgh, Arrowsmith, Cornelison, and Valentine.
For reversal — Judges Elmer and Risley.
Cited in Paulin v. Kaighn, 3 Dutch. 511; Phillipsburgh Bank v. Fulmer, 2 Vr. 56; Martin v. Franklin Fire Ins. Co., 9 Vr. 142.