dissenting:
Upon reconsideration, subsequent to the filing of a petition for rehearing, I find that I must now dissent from that to which I formerly agreed.
In my judgment the majority opinion disposes of this controversy by resolving an issue that was not really litigated in the trial court.
Examination of the reporter’s transcript of the proceedings upon trial clearly indicates that it was Baumgartner’s sole position as advanced by him throughout the trial that: (1) the debt for unpaid insurance premiums was that of Minerals Exploration Research Company (hereafter called Merco), a corporation; or (2) that the debt was that of Merco, a partnership, in which he was only a limited partner, and that in either event he as an individual was not liable. At no time during the actual trial of the case was there the slightest suggestion from Baumgartner that this undisputed debt for unpaid insurance premiums was not due the Burts, but to their principals. In arguing his motion to dismiss, interposed at the end of the Burts’ case, Baumgartner candidly conceded that there was an indebtedness for unpaid insurance premiums, but in support of his motion he urged that the debt was not his, but that of the limited partnership or its successor corporation. In arguing this motion Baumgartner did not contend that the Burts had failed to make a prima facie showing that this debt was due them.
After the trial proper was concluded, the trial court took the matter under advisement and permitted counsel to file briefs. It was when these briefs were filed many weeks later that Baumgartner for the first time suggested that this debt was not due the Burts, but their principals. By that time the Burts were obviously in no position to offer evidence which conceivably could have completely annihilated this contention.
The Burts’ complaint was for a debt due on what they *70correctly described as an “open account.” 44 C.J.S. p. 1337. By answer, Baumgartner denied all allegations in the complaint and affirmatively alleged that if he was in fact a partner in Merco, he was only a limited partner.
The evidence disclosed that the Burts, operating as a general insurance agency, sold and delivered numerous insurance policies of many different types to Merco, be it the partnership or the corporation, and that in return Merco paid the Burts the sum of approximately $2800 as a partial payment for premiums due. It was also established that some of these policies were cancelled by Merco before their expiration date and that in such instances Merco received payment or credits from the Burts in the approximate amount of $3400. There was no complaint that the Burts did not have the authority to effectuate this return of premiums, but only the belated complaint that the Burts were not the proper parties to successfully maintain an action for unpaid premiums. Moreover, it is of interest to note that the Burts testified that in 1957 Baumgartner acknowledged his preexisting indebtedness to the Burts and once again promised to pay them as soon as he in turn collected some of his own accounts receivable.
The majority opinion quite correctly recognizes that an agent of an insurance company can under some circumstances maintain an action in his own name for unpaid premiums. If the insured when sued for unpaid premiums wishes to put in issue the right or the capacity of the agent to maintain the action, or to contend that the agent is not the real party in interest and that his principal is an indispensible party, the better practice would seem to be that such claim be affirmatively pleaded. See Rules 8 (c), 9 (a) (1) and 17 (a), R.C.P. Colo.
Had this matter been thus raised either by pleading or by testimony even during the trial proper, then the Burts would have at least been afforded the opportunity to show, for example, that they had in fact already paid *71their principals the premiums now sought to be recovered from Baumgartner, or that they had obligated themselves to so do, in which event the majority opinion recognizes that the Burts would then have the right to maintain the present action in their own names. The belated manner in which this issue was injected into the proceedings effectively precluded the Burts from even the opportunity to defend themselves.
Mr. Justice Sutton states that he joins in this dissent.