underwriters had the policy been made according to his instructions, or in such a manner as he had a right to expect or require. (w) Not only is the broker liable to an action for negligence in not effecting an insurance according to instructions, but circumstances may arise in which he will be so liable for not having duly called on the underwriter for payment of losses: thus, a policy broker, who had been employed to effect an insurance, having omitted to make timely application to the underwriters for the payment of a loss, they became insolvent; and the assured thus lost the fruits of his insurance. There was nothing to show that the broker ought to have called upon the underwriters to settle and pay, except that the policy remained in his hands after the loss had happened; but Lord Ellenborough thought, that from this circumstance he must be presumed to have promised that he would collect the sums due from the underwriters on a loss happening, in consideration of the commission received for effecting the insurance. (x) 92. (w) Delaney v. Stewart, 1 T. Rep. Wilkinson v. Coverdale, 1 Esp. Wallace v. Tellfair, ibid. 76. Glaser v. Cowie, 1 Maule & Sel. 52. 75. (x) Bousfield v. Cresswell, 2 Camp. 544. the assured in the policy. the 28 G. 3. CHAP. VI. DESCRIPTION OF THE ASSURED IN THE POLICY. Description of § 74. WE have already, in briefly noticing the main requisites of the policy, stated how the blanks in the common Construction of printed forms are generally filled up with the names either of the assured himself, or, as is the case in the very great majority of instances, of the broker by whose instrumentality the policy is actually effected. c. 56. Practice of effecting policies in blank. This arose from a misconcep nature of the mischief to be remedied. We will now proceed to give, a little more at large, the history and present state of the law as it relates to the filling up of these blanks in the printed forms. A practice appears to have sprung up in this country in the middle of last century of effecting policies in blank; i. e. without inserting the names either of the party for whom or by whom they were effected. (a) In order to remedy this, an act was passed in the year 1784 (b), directing that the name of the person interested, or of his agent, should in all cases be inserted in the policy. The provisions of this act appear to have been founded on tion of the real a misconception of the real nature of that grievance of which the underwriters complained. What the underwriters really wanted was merely to know the name of some one concerned in effecting the policy, no matter whether principal or agent, to whom they could look as a responsible creditor. What the legislature appears to have aimed at was, as far as possible to compel a disclosure of the name of the person really interested as principal. the assured in Construction of the 28 G. 3. The courts interpreted the act strictly. Very soon after Description of it was passed an underwriter took advantage of it to evade the policy. his contract on the ground that the agent's name was not inserted, eo nomine, as agent (c); and another policy was held void under the same law, because the names of all the parties interested were not inserted therein. (d) This was evidently going too far. In fact, the law was obviously ill adapted to secure the object which the underwriters really had in view; and, like all restraints on the freedom of mercantile contracts, appeared likely to prove extremely inconvenient in its operation. § 75. To remedy these mischiefs, therefore, another statute was passed in the year 1787 (e), which still remains the law of the land. c. 56. Cases decided on the act 25 G. 3. c. 44. This act provides that no policy shall be effected without Present law, first inserting therein "the name or names, or the usual style and firm of dealing," either 28 G. 3. c. 56. The courts of law have held themselves bound to give this This act is conact the most liberal construction the words will bear. Thus, in a case that arose very soon after the passing of the act, it was held that the consignees of the bills of lading, who were also the general agents of a foreign merchant, had a right in their own names to effect an insurance on the goods, on the refusal of the consignees of the goods to do so, and might recover as "consignees," within the meaning of the act, under a count alleging that they had effected the policy as agents for the foreign merchant, and averring the interest to be in him (ƒ); as, moreover, it appeared in the same case, (e) Bray v. Edie, 1 T. Rep. 313. (d) Wilson v. Reaston, Park, 16. 8th ed. Cox v. Parry, 1 T. Rep. 464. (e) 28 G. 3. c. 56. M 3 strued with the utmost liberality. The consignees of the bills of lading, who are also the gene ral agents of a chant, and are that he intends the goods to be insured, have a right, on the refusal of the consignees of the (f) Woolff v. Horncastle, 1 Bos. & goods so to do, Pull. 316. to insure the goods in their own names, as agents for their foreign princi Description of the assured in the policy. the 28 G. 3. c. 56. pal, for they are "consignees" within the act. that, although the foreign merchant had given them no directions in the first instance to insure, yet, as it was clear from Construction of his original instructions that he intended the goods should be insured by some one, and also, as he had afterwards, directly he heard the plaintiffs had effected the policy, written to approve of their having done so, the court held that they meaning of the might recover, under the same count, as "persons receiving the order to effect the insurance" within the meaning of the act, for omnis ratihabitio retrotrahitur et mandato æquiparatur. (g) The court further intimated that as the plaintiffs had, in point of fact, given the immediate order for the policy, and employed the broker by whom it was actually effected, they might recover under the same count, as "persons giving the order to make the insurance," within the meaning of the act. (h) If they employ a broker, they are "parties giving the order to make the insurance." The consignees of a bill of lading who have accepted and paid bills drawn on the security thereof, are, up to the extent of such bills, As it further appeared in this case that the foreign merchant had drawn a bill upon the plaintiffs for 3007., upon the security of the bills of lading and the expected policy, and that this bill the plaintiffs had accepted and afterwards paid; the court held that the plaintiffs were "parties interested" within the meaning of the act, to the extent of 3001, and as such that they had a right to insure in their own names and the meaning of on their own account up to that amount; and accordingly to that extent the court allowed them to recover on the second count of the declaration, which averred the interest to be in them, and that they had effected the policy on their own account. (i) "parties interested," within the act. The word "agent" need Upon this act it has been further decided, that where a never be insert. policy is effected, even for a person resident in this country, ed in the policy. by a broker or agent also resident here, it is not necessary to An agent for a add the word "agent" or any other description to his name limited purpose is within the in the policy itself (j); that an agent for a limited purpose is Naming parties as much within the act as a general agent (k); and that where as "trustees" is the policy was effected in the names of the parties really act. a sufficient insertion of "their usual style and form of dealing," within the act. (g) Woolff v. Horncastle, 1 Bos. & Pull. 316. (h) Ibid. (i) Ibid. (j) De Vignier v. Swainson, 1 Bos. & Pull. 346. n. (k) Bell v. Gilson, 1 Bos. & Pull, 345. interested, the naming such parties in the policy merely as the "trustees of Messrs. A. B. and C.," may be considered as an insertion "of their usual style and form of dealing" under the act. (1) Description of the policy. Construction of the assured in the 28 G. 3. c. 56. The subsequent adoption of the policy by the party for whom it was effected, is equivalent to thority from a previous au him to insure, and constitutes effects the po licy "a person order to effect the insurance ing of the act." receiving the within the mean Hagedorn v. . We have also seen that one of the points determined in the case of Woolff v. Horncastle was this-that the subsequent adoption of the policy by the party for whom it was intended to be made, is equivalent to a previous authority to effect it, and constitutes the party making it "a person receiving the order to effect the insurance" within the meaning of the act; and this, by virtue of the general principle of the the party who law of agency, that omnis ratihabitio retrotrahitur et mandato æquiparatur. Lord Ellenborough, indeed, in one case, suggested a doubt whether that maxim could be applied when the statute required the names of a particular description of persons to be inserted in the policy. (m) This must, however, Cases illusbe regarded as the hasty expression of an unfounded doubt; trating this the case in which it occurs was decided on another ground, and the principle it impugns has been ratified by the highest court of judicature in this country, and acted upon by Lord Ellenborough himself, in at least one case of more recent date than that in which he is reported to have expressed a doubt of its soundness. (n) Out of the many cases that might be cited, the following will be a sufficient illustration of this general principle, as applied to the interpretation of this statute. A policy was effected in London, through the medium of a broker, by the orders of Hagedorn, in the usual form, " as well in his own name as for and in the name and names of all whom it might concern." This policy was effected by Hagedorn for Schroder, a foreign merchant, who had given him no previous authority for that purpose, and who did not (1) Hibbert v. Martin, 1 Camp. 538. (m) Bell v. Janson, 1 Maule & Sel. 203. v. Oliverson, 2 M. & Sel. 485. Barlow v. Leckie, 4 J. B. Moore, 80. The law is the same in the United States; (n) Lucena v. Craufurd, 1 Taunt. see per Kent C. J. in † Steinback v. 325. S. C. in the House of Lords, 3 Rhinelander, 3 John New York Cases, Bos, & Pull, N. R. 269. Stirling v. 281. Phillips on Ins., vol. i. p. 157. Vaughan, 11 East, 623. Routh v. Kent's Comm. vol. iii. p. 256. ed. Thompson, 13 East, 274. Hagedorn 1844. Oliverson. |