National Union Fire Insurance v. Nason
Before: Murphey
Synopsis
Insurance—Compensation op Agent—Return op Commissions on Canceled Policies.—An insurance agent whose contract provides that he shall retain as his compensation thirty-five per cent of gross premiums after deducting all return premiums, rebates, and reinsurance, is properly chargeable in his account for commissions on return premiums on policies canceled either before or after the termination of his agency.
Id.—Appeal—Theory op Case—Issue Tacitly Accepted.—Where an issue is tacitly accepted -by all the parties as properly presented for trial and as the only issue, the appellate court will proceed upon the same theory.
[298]
MURPHEY, J.,
pro
tem.
Appeal from a judgment in favor of plaintiff and from an order denying defendant’s motion for a new trial.
Defendant was for a term of years the general agent' for the plaintiff in the state of California. At the time of the trial the parties exchanged accounts, from which it appeared that the only difference between the parties was as to two items, the respondent claiming a credit of $925.23 for return of commissions retained by appellant from premiums on policies that were afterward canceled; and the appellant claiming a credit of $317.33 for commissions earned by him but rebated to insured policy-holders by respondent through adjustments made necessary by reason of the fire in San Francisco of 1906.
If respondent’s claim for return of commissions was sustained without allowance to appellant for earnéd premiums, there would be a balance of $678.77 due respondent. 'The court found in favor of respondent on the single issue of the return of commissions on canceled insurance, and in favor of appellant for the amount of $317.33, earned commissions on adjusted insurance, and gave judgment for the respondent for the balance claimed after deducting this amount.
The record fairly discloses the fact that the appellant at the time of the trial conceded that there were flat cancellations of insurance upon which the aggregate commission retained by him would amount to the sum claimed by the plaintiff; but contended that the cancellations were effected after he severed his connection with the plaintiff corporation, and it was upon this theory that the cause was tried. As we understand the record it was upon this understanding that the plaintiff rested his case: “The position that Mr. Nason takes in this matter is this, that these policies having been canceled after the termination of his agency, he is not responsible nor liable for any return premiums on those policies or any premiums at all, for this reason: that Mr. Nason operated an' office here; that all of this business was brought and placed upon the books of the company by and through the efforts of Mr. Nason and through money expended by him; and the policies being canceled after the termination of his agency, he cannot be held responsible for any of these return premiums.
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