Van Slyke v. Broadway Insurance

Searls, C. This is an action to recover from defendant (a corporation), upon three several causes.of action, sums of money aggregating $1,596.65. Plaintiff had judgment for a balance of $1,309.73. Defendant appeals, and the cause comes up on the judgment-roll, without any bill of exceptions.

The whole contention arises over plaintiff’s third cause of action. It appears that defendant, the Broadway Insurance Company, is a corporation organized under the laws of the state of New York, and engaged in the insurance business in California. Plaintiff was the general agent of defendant in the state of California.

It appears from the third cause of action, as set out in the complaint, that there were, from October 1,1893, to October 1, 1894, several written agreements between [645]plaintiff and defendant stating the terms of plaintiff’s agency, and providing for his compensation as such agent, and in each of which agreements defendant bound itself to pay to the plaintiff, in addition to other compensation for his services: “1. A contingent commission of five per cent; 2. To share the expenses of the general agent’s office in San Francisco pro rata with the Mutual Fire Insurance Company for clerks’ salaries, rent, and office furniture and fixtures, to the maximum amount of $3,200 per year, as shown by the ledger of the general agent in San Francisco, California.”

After citing from the agreements the clause in relation to the “ contingent commission of five per cent,” the pleader avers in apt terms that by said agreement both plaintiff and defendant intended and understood that defendant should pay to plaintiff on the amount of premiums actually received and collected by plaintiff, after deducting therefrom the amounts paid by plaintiff as return premiums, and for reinsurance, and for losses against which defendant had insured.

The complaint then proceeds to show the amount collected as premiums, the sums paid out as return premiums for reinsurance and for losses, and shows as a result that there is due plaintiff on this basis the sum of $596.66.

Touching the item of office expenses, it is averred in substance that it was intended and understood by both plaintiff and defendant that defendant should pay to plaintiff such proportion of his office expenses as the amount collected by him for defendant bore to the amount collected by him for the Mutual Fire Insurance Company.