Opinion
04-15-1889
WASHINGTON LIFE INS. Co. v. LANE et al.
Wm. N. Corbin, for complainant. L. B. Ransom, for defendants.
Wm. N. Corbin, for complainant. L. B. Ransom, for defendants.
Mast. On May 24, 1872, the complainant took from the defendants, Sarah P. Lane and her husband, a mortgage for $8,000 upon a farm in Somerset county. The consideration of the mortgage was paid by the company as follows: $5,075 to take up a prior mortgage; $111.80 to the attorneys of the company for searching the title; $50 for fire insurance; $661.20 for the first annual premium on a policy issued by the company contemporaneously with the $8,000 mortgage on the life of Joseph M. Lane, a son of the mortgagor Sarah P. Lane; and the balance, viz., $2,102, to the mortgagor Sarah P. Lane. The loan was negotiated on behalf of Sarah P. Lane by her husband. He dealt, not directly with the company or with any of its officers, but with one S. S. Wood, an insurance broker, who exacted a bonus of $400 for his services in procuring the money. The defendants claim that the proof shows that Wood was the agent of the company, and that as such agent he not only took the above bonus, but that he also made it a condition precedent to the lending of the money that the borrower should take out the before-mentioned policy, on her son's life.
I think it plain that the defense is not established. The only evidence that Wood was the company's agent in the transaction is found in the testimony of the defendant Joseph Lane, who says that Wood told him that he was such agent. This is incompetent. Faulkner v. Whitaker, 15 N. J. Law, 438; Washington Life Ins. Co. v. Paterson Silk Manuf'g Co., 25 N. J. Eq. 160. Being incompetent, there is not the slightest ground for holding that the company is in any wise chargeable with Wood's act. Even if it had been proved that Wood was the company's agent, the company would not have been chargeable with the bonus paid, for there is no evidence that it was taken with its knowledge, or that it received any part of it. Muir v. Savings Inst., 16 N. J. Eq. 537; Gray v. Van Blarcom, 29 N. J. Eq. 454; Nichols v. Osborn, 41 N. J. Eq. 92, 3 Atl. Rep. 155.
As to the other point, it does not appear,in the first place, except by the testimony of Lane as to what Wood said to him, that the company did require as a condition precedent to the loan that Mrs. Lane should take out a policy on her son's life. Even if it had so appeared, it has been decided by this court in two cases, which I, sitting as advisory master, would hardly be at liberty to overrule, even if I disagreed with them, which I do not, that such a condition is not of itself unlawful. Washington Life Ins. Co. v. Paterson Silk Manuf'g Co., 25 N. J. Eq. 160; Insurance Co. v. Crane, Id. 419. Decree accordingly.