Tasker v. Insurance Co. , 59 N.H. 438 ( 1879 )

The alleged contract on which the plaintiff brings this suit, is a policy of insurance written by Robinson. If this policy is not a contract made by Robinson as agent of both parties, it is not a contract made by anybody. Robinson's knowledge of it was, in legal effect, the plaintiff's; and at the time of the fire this constructive information was all the knowledge of the contract the plaintiff had. Robinson was not merely the plaintiff's agent for the purpose of receiving the policy. Their agreement was, that Robinson should keep the plaintiff insured in three good companies to the amount of $3,000. By this agreement Robinson was authorized, as agent of the plaintiff, to make all legal contracts of insurance necessary for keeping the plaintiff insured in three good companies to the amount of $3,000. This agreement is the sole foundation of the plaintiff's case. In the supposed exercise of authority given by this agreement, Robinson undertook to make the contract on which the plaintiff brings this suit.

One provision of the policy is, that no suit shall be maintained upon it unless commenced within a year from the date of loss; and this suit was not commenced within that time. There is no evidence that the defendants waived this stipulation. By withholding the policy from the plaintiff, they did not give him to understand, and did not induce him to act upon the understanding, that they waived the limitation. As they did not cause him to believe, or to change his position in the belief, that they waived the limitation, they are not estopped to deny that the suit was brought within the time prescribed by the contract.

The plaintiff cannot avoid the limitation on the ground that he had no knowledge of it, and his agent was not authorized to assent to it. If the contract on which the suit is brought was ever made by anybody, it was made, on the part of the plaintiff, by Robinson as his agent. In making it, Robinson necessarily assumed to act as agent of both parties. And whether the plaintiff claims the contract as his, by previous authorization or subsequent ratification, is immaterial. It is not his unless the knowledge and assent of Robinson, acting as agent of the plaintiff, were the plaintiff's knowledge and assent. Robinson's authority to make the contract, as agent of the plaintiff, included authority to know what the contract was that he made. As the defendants are charged with knowledge of facts known to their agent (Patten v. Ins. Co., 40 N.H. 375), so the plaintiff, in this suit upon a written contract made in his behalf by his agent, is charged with his agent's knowledge of the contract. The case is as if the plaintiff had written the contract himself. He cannot enforce stipulations favorable to himself, and reject the rest. A written contract that does not express the intention of the parties may be reformed in equity: but in this suit at law the policy cannot be altered by parol evidence. Preston v. Ins. Co., 58 N.H. 76, 77; Webster v. Webster,33 N.H. 18, 25; Glass v. Hulbert, 102 Mass. 24, 34-36. Other questions raised by the defendants need not be considered. The motion for a nonsuit should have been granted.

Verdict set aside.

STANLEY, J., did not sit: the others concurred.