Page:Federal Reporter, 1st Series, Volume 8.djvu/198

 184 FJSDEBAL BBPOBTEB. �LowELL, C. J. The plaintiff, residing at Ossipee, held two mort- gages upon the house of Abram Cole, at Grafton, aud applied, in January, 1874, to Buel C. Carter, of Wolfborougb, to insure bis interest as mortgagee. Carter was agent for some Insurance com- panies and was applied to in that obaracter, and promised to place the risk in a good company. He was not the agent of the defendant Company, except that Kufus P. Staniels, Iheir general agent for Concord and the vicinity, had asked him to send to him any risks which he did not place in bis owo companies. This had been done in several instances before 3874, and the course of business was for Carter to forward the apph'cationa or memoranda of a risk to Staniels, and if it was accepted Staniels sent Carter a policy, which Carter delivered on payment of the premium, and was allowed 10 per cent, of the premium for his commissioni. < �In April, 1874, in pursuance of the request of the plaintiff. Carter made oiit a paper, which may he copsidered to be an application. It ia, in form, an agent's daily memorandum. It is headed Germania "Pire Insurance Co.," and proceeds: �"Insurance is granted to Abram Cole, of Gorham, N". H., on two-story frame dwelling-house, ell and barn connected, oceupied in summer season for summer boarding-house, and in winter by assured as dwelling-house, $1,500; on fur- niture therein, $500. Situate near Gorham village, on the road to Randolph, if. H. Payable, in case of loss, to George B. Frost, [this should be George B. Sias, and is so in the policy,] of Ossipee, as his interest may appear," �On the back are many particulars of the situation of the property, with a diagram, etc. This paper appears to have been sent to Car- ter's correspondents in Boston and to have been rejected by them, and then to have been enclosed to Staniels, who accepted the risk and issued a policy, dated May 1, 1874, insuring Cole for two.years, payable to the plaintiff as- his interest should appear. This policy he sent to Carter, who sent it to Sias. Carter received the premium and paid it to Staniels, after deduoiing his commission. Pive hun- dred dollars was insured on the fumiture, in which Sias had no interest. This would seem to be a mistake of Carter's. Sias paid the premium himself and intended to insure his own interest, and had no authority or request from Cole, the mortgagor, to insure the equity. He called Carter's attention to the form of policy and asked him if it insured his interest and that only, and was informed by him that it did. The buildings were destroyed by fire in July, 1875, and Sias brought an action, which Was removed to and tried in this court, Judge Shepley presiding. The company proved that Cole haa ��� �