The policy was upon the joint lives of the plaintiff and her husband. He having died on the 16th day of September, 1872, she claims to recover the amount of the policy, and the principal contention upon the trial was whether the premium due on the 16th day of July of that year had been paid. The court granted a nonsuit upon that ground only. The deceased was a clerk for the general agent in charge of what it called the German department of the defendant. It seems that the deceased transacted most of the office business of the department, with the knowledge and approbation of the company, who, a portion of the time at least, paid his salary. He occupied, therefore, the same legal relation to the company in respect to any business properly belonging to his duties, as the general agent did, and possessed corresponding power. (51 N.Y., 117.) The evidence of payment relied upon, was a receipt in the usual form, signed by the secretary of the company and countersigned, on behalf of the general agent, by thedeceased. This receipt with others were delivered to the agent to receive the premiums, and upon receipt of the same, to countersign *Page 392 and deliver them to the parties entitled to them respectively. I do not think that this receipt alone was sufficient to establish the fact of payment by the agent himself, while in favor of third persons it might have been prima facie evidence of such payment. It is a general rule, that an agent cannot in the same transaction act for himself and his principal (Story on Agency, §§ 10, 11, 210, 211); and within this rule I do not see how he can bind the principal to the receipt of money by a mere acknowledgment that he received it from himself. (19 Barb., 595.) Some additional evidence should have been given of the payment. Several prior receipts, countersigned by the deceased, were produced, and the inference is from the testimony that the payments for these prior premiums were either actually made, or that the amount was debited to the agent or otherwise satisfactorily arranged; but as to the premium due July 16th, 1872, no act of the company was shown from which such an inference could be drawn. The receipt was confessedly delivered to the deceased with others before payment. The deceased countersigned it, and reported it with others as paid; but there was no act of the company proved indicating such payment, either by the receipt of money, by debiting the amount to the agent, or by crediting the assured with the payment, or by an acquiescence from which an admission of payment might be inferred. The whole evidence in effect was that the deceased, while acting as agent of the company, receipted money to himself, and told the company that it had been paid. This is not sufficient without corroborative evidence.
The fact that prior payments were made and receipted by the deceased, which were recognized by the company as payments, does not materially strengthen the force to be given to the receipt alone. I do not think, therefore, that the plaintiff establishedprima facie proof of payment of the premium in question, but if the proof might be regarded in some weak sense prima facie, the evidence by the agent, secretary and president of the company, that the premium had not in fact been paid, was of such a convincing character as to justify *Page 393 the judge in refusing to submit the question of payment to the jury. Upon the whole evidence a verdict in favor of the plaintiff would have been set aside, as against evidence, and in such a case it is the duty of the court to nonsuit.
These views answer also the point of waiver, and besides there was no request to submit that question to the jury. It is quite probable from the evidence that the prior payments were not in fact made, and that the company were induced to recognize them by the adroitness or deception of the deceased. Whether this was so or not, the plaintiff cannot have the benefit of a payment not in fact made, and which never was recognized as such by any act or admission of the company or any of its officers. The deceased was equally interested with the plaintiff in the policy, and she cannot claim any greater benefit from his acts than he could if she had first died and he had brought the action.
The judgment must be affirmed.
All concur.
Judgment affirmed.