Hill v. Millville Insurance Co. and asked whether the vessel was in good order and whether P. I. Nevius & Son owned her, to which Baker replied by letter of November 22d, 1878, that Nevius said she belonged to a business friend of his, and that in consequence of the business relations between him and them, P. I. Nevius & Son kept that insurance on her. That letter was received by the company. But notwithstanding the fact that P. I. Nevius & Son said they did not own the brig, it issued the policy to them and sent it to Baker, enclosed in or with a letter in which the secretary asked why P. I. Nevius & Son insured the vessel in their own name if they did not own her, and added that the company was not willing to issue the policy except in the name of the owner. That policy was canceled, and another, in the name of the complainant, issued instead thereof, as before stated. It appears, from the evidence, that before the application for the last policy was made, the company itself had taken notice of the fact that the thenexisting policy (to the complainant) was about to expire, and the secretary had written to Baker on the subject. By letter of October 22d, 1879 (the policy then in force did not expire until the 8th of November, and no application for its renewal had been made), the secretary informed Baker that that policy would expire on the 8th of November, and that before renewing it the company must have a full report of the situation of the vessel. Baker promised, by letter of October 25th, 1879, to attend to the matter. The complainant, by letter of November 19th, 1879, directed P. I. Nevius & Son to renew the policy for him. In compliance with that direction they sent a clerk of theirs, Mr. McIntosh, to Baker, as agent for the company, to obtain the renewal. He took with him the policy which had expired on the 8th, and gave it to Baker for renewal. The latter at once said (undoubtedly referring to the communication he had received on the subject from the company by the above-mentioned letter of October 22d) he would have to have the full particulars of the vessel as to her repairs &c. before he could do anything with it. Mr. McIntosh immediately wrote to the complainant for the required information. Owing to his absence from home, the complainant did not reply until December 3d. The information Hill v. Millville Insurance Co. he then gave was not satisfactory to Baker (he said it was not sufficiently explicit), and Mr. McIntosh again wrote for P. I. Nevius & Son to the complainant for a copy of the vessel's class. The complainant replied, December 15th, that the vessel had been reclassed in Baltimore, and that he had requested a Mr. Hays of that city to send them the needed copy. They obtained it from Hays and gave it to Baker. A short time afterwards he obtained the policy and delivered it to P. I. Nevius & Son, who took it and put it away in their safe, without particular examination, and never discovered that it was not issued to the complainant or was issued to them, until after the proof of loss had been made, and the company refused to pay on the ground that the policy was issued to P. I. Nevius & Son, who did not own the vessel. Nevius & Son made no written application for the policy in question. They merely applied for a renewal of the policy of 1878, which they then handed to the agent. No written application was made at all until the 23d of December, when Baker himself made it, as before stated, on one of the blanks furnished him by the company for such purposes. He had not been requested by P. I. Nevius & Son to renew or insure in their name. They had not told him, or given him to understand, that the complainant was no longer the owner of the vessel, nor that they had become the owners, nor that they had any interest whatever in it; they merely applied for a renewal of the policy of 1878 which had been issued to the complainant, and gave him that policy for his guidance and as part of his instructions. Indeed, the request for a renewal and the delivery of the policy which had expired, constituted the application on their part. It does not appear that they understood that Baker intended to make the written application. They did not request him to do so; but after he had obtained the copy of the class, he, without consultation with them, and without their knowledge, made the application, signing it "Daniel D. Baker, for applicant." He says the insertion of the name P. I. Nevius & Son was, he supposes, a mistake of his; that Mr. McIntosh came to his office and wanted the policy renewed, and as he, Baker, had frequently made out policies for Hill v. Millville Insurance Co. P. I. Nevius & Son, he made this one out in that way. He says he supposes it was a blunder of his, and he adds that he did not discover it until after the loss. He knew the application was for a renewal; the word "renewal" is written in the usual placea conspicuous one-at the top of the application, and is underscored to call attention to it. Moreover, on the same day on which the application is dated, Baker wrote to the company, enclosing the application, and speaking of it as an application for "renewal" of the policy on the Euroclydon. He added: "You will recollect you informed me that her class had expired, and that unless she had been reclassed you could not renew it. I so informed Mr. Nevius. He replied that he would write to the managing owner and find out about it. He did so, but received no reply until recently, as the managing owner was absent from home" &c. The company knew it was an application for a renewal of the policy which had been issued to the complainant. It is urged on behalf of the company that by the reference to the managing owner in Baker's letter, the company was led to believe that P. I. Nevius & Son were part owners. That reference was not such a representation. The company, knowing, as it did, that P. I. Nevius & Son were ship-brokers, and that when the policy to be renewed was issued they were merely agents for the complainant in obtaining insurance on his vessel, was not warranted in assuming from that reference that the firm were themselves part owners. The term "managing owner," it may be observed, is one which ship-brokers would be very likely to use in connection with a request for information as to a vessel, without reference to whether she was owned by one or more persons. Baker, in his letter, probably intended to give the substance of the conversation with Nevius and not his exact words. The conversation was not in reference to the ownership of the vessel at all, but as to her condition, and Baker would probably have used the same language if Nevius had told him they would apply to the person who was the sole owner, who, of course, would have been the managing owner. It is noteworthy, in this connection, that Mr. Nevius swears that before the policy of 1878 expired, Baker Hill v. Millville Insurance Co. called on him and stated that the company would not renew the policy without having knowledge of the repairs which had been made, and whether the vessel had been reclassed, and he says he thinks he stated to him at that time that he had received no orders to renew the policy. Baker certainly understood that P. I. Nevius & Son were merely agents for the owner, and not owners or part owners themselves. Baker was the agent of the company and not the agent of the complainant, and the latter is not bound or to be affected by his errors or unauthorized misstatements. The fact that Baker signed the written application "for the applicant" did not make him the agent of the complainant, or render him any the less the agent of the company. It is true, Mr. Howell, the secretary, swears that the officers of the company, before taking the risk, wrote several letters asking if P. I Nevius & Son were owners, and that the replies thereto were that the complainant was managing owner and they part owners, and that the company was insuring the interest of the latter, but he does not speak of his own knowledge, and the statement is entirely unsupported and is clearly erroneous. All the evidence shows that no question was asked or suggested as to the ownership at all. The same witness also says that the application for the second policy was in the name of the complainant. This is a mistake. It was in the name of P. I. Nevius & Son, and was made and signed by Baker. It should be stated that Mr. Mulford, the person who was secretary during all these transactions, is dead. Mr. Howell became secretary in June, 1880. The defendant denies that Baker was its agent. It alleges that it had no recognized agent in the city of New York, and was, by the laws of the State of New York, prohibited from having any there, because it was a mutual company. The latter fact is of no importance in this suit. If, in fact, Baker was its agent, it is manifestly of no consequence that the law of New York prohibited the defendant from having an agency there. The fact that the defendant violated the law of New York in that respect would not excuse it from liability. Baker might have been its agent to bind it, notwithstanding the prohibition. As it construed the law, it was at liberty to do business in New York by Hill v. Millville Insurance Co. special agents, and its idea seems to have been that it might lawfully act in its business there through persons in New York as its agents, notwithstanding the law, provided such persons did not publicly, by signs or otherwise, claim to be its agents. That Baker was its agent (and with a very extensive field of action) there is no room to doubt. P. I. Nevius & Son understood that he was its agent, not only from his acts as agent in behalf of, and as representing it, but also from what he said on the subject. Mr. Nevius says he thinks Baker told him he was agent for the company. Baker testifies that he did business in respect to insurance by the company from about the year 1873 to 1879. The secretary says that Baker did business with them from 1874 to about the first part of 1880, when the company got into difficulty, and, as he expresses it, closed up writing on any of Baker's business for a period of about six months-from June 1st, 1880, to the first part of 1881. He also says that Baker is doing business for the company still, but that appears from Baker's testimony to be a mistake. He says he has not done any business for the company since it got into trouble. Baker, when asked to state the different kinds of business which he transacted for the company, at its request, during the period he named as above mentioned, from 1873 to 1879, said they were hull risks, freights and cargoes; that when there was a wreck, or a vessel was injured in any way, he attended to the business for the company and arranged the business of the loss &c.; that he made certain kinds of risks binding on the company; that he sometimes received directions from it to insert certain clauses in the policies ; he initiated risks on open policies, whether of insurance to individuals or re-insurance to companies; as agent for the company, he received and receipted for premiums and accounted for them by monthly accounts to it; he sometimes examined vessels for it as to their condition and class, and it consulted with him generally in reference to all matters, such as averages, collections &c. to be done, learned or attended to in the city of New York touching its marine insurance, not only so far as those were concerned which it had taken through his instrumentality, but occasionally also as to others. He made some adjustments, |