Opinion
November 15, 1948.
January 3, 1949.
Insurance — Cancellation — Unearned premiums — Amount of unearned commissions to be remitted by broker — Claim for fees as adjuster — Compromise — Release — Restatement, Agency.
1. In a suit by plaintiff against the defendant insurance company to recover the balance of unearned premiums following the cancellation of a fire insurance policy issued to plaintiff by defendant, and in which the defendant brought in as an additional defendant the general insurance agent and broker for plaintiff, in which suit it appeared that the insurer delivered to the additional defendant its check in a stated amount, representing the balance of unearned premiums, less the amount of unearned brokerage or commission which the defendant and the additional defendant had agreed the latter should remit to plaintiff; that the additional defendant credited plaintiff on its books with this difference but refused to pay it to plaintiff as it claimed plaintiff was indebted to it in excess of the sum for fees for adjusting a fire loss; and that, as a result of this dispute, and in settlement of other claims, the parties executed mutual releases; it was Held that the release had discharged the obligation for which the suit was instituted. [570-1]
2. Restatement, Agency, § 165, cited. [571]
Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.
Appeal, No. 192, Jan. T., 1948, from judgment of Common Pleas No. 3, Philadelphia Co., Sept. T., 1946, No. 3325, in case of The Kent Defense Corporation v. Colonial Assurance Company et al. Judgment affirmed.
Assumpsit.
The facts are stated in the opinion by MacNEILLE, P. J., of the court below, MacNEILLE, P. J., MILNER and MAWHINNEY, JJ., as follows:
We are considering plaintiff's exceptions to the finding of the trial judge in favor of defendants in an action at law brought by plaintiff against Colonial Assurance Company and Edward Kolsky and Son as added defendants, and tried by the judge without a jury.
We have carefully reviewed the evidence and we are in accord with the finding and order entered by the trial judge. We deem it unnecessary to recite the facts as they are set forth in sufficient detail in the opinion of the trial judge.
We believe it necessary to only briefly comment on plaintiff's second exception, which reads as follows: "2. Plaintiff excepts to the court's finding as follows: 'We are convinced that the parties intended by this release to settle and discharge the claim of Kent Defense Corporation against Edward Kolsky and Son in the amount of $2,511.74.' "
It seems evident to us that Edward Kolsky and Son were acting as plaintiff's agent in cancelling the insurance policy with Colonial Assurance Company. It is further clear that in obtaining the unearned premiums it was acting as plaintiff's authorized agent. As between the Colonial Assurance Company and Edward Kolsky and Son, the amount of unearned premiums was paid in full by the insurance company. Edward Kolsky and Son as plaintiff's agent turned part of the unearned premiums over to plaintiff but the amount of $2,511.47, which represents the unearned portion of the commission of Edward Kolsky and Son, was retained and a credit of that amount was given to plaintiff on the books of Edward Kolsky and Son. The evidence reveals that a dispute for a commission owing to Edward Kolsky and Son was existing with plaintiff at the time. After negotiation the amount of $2,511.74 claimed by plaintiff and the amount of commissions claimed by Edward Kolsky and Son were settled by compromise. In pursuance of said compromise Edward Kolsky and Son paid plaintiff $8,500 and the parties signed mutual releases settling all claims and disputes then existing between the parties, including the $2,511.74 of Edward Kolsky and Son's unearned commission on the premiums, which commission was held by Edward Kolsky and Son as agent for plaintiff. Plaintiff's authorized agent having received or been paid the total amount of the unearned premiums, the plaintiff has no cause of action against Colonial Assurance Company. See Schroeder v. Real Estate Title Insurance Trust Company et al., 173 Pa. 422; Murphy, Trustee v. Belt Automobile Indemnity Association, 295 Pa. 244; Restatement of Law of Agency § 165 (d). And, as stated supra, plaintiff has no rights against Edward Kolsky and Son for the $2,511.74 as the compromise and mutual releases extinguished that debt.
Wherefore, plaintiff's exceptions are dismissed and judgment is directed to be entered for defendants, Colonial Assurance Company and Edward Kolsky and Son, Inc.
Appeal by plaintiff to Supreme Court allowed.
Frederic L. Ballard, Jr., with him Hamilton C. Connor, Jr., Charles I. Thompson and Ballard, Spahr, Andrews Ingersoll, for appellant.
Morris Wolf, with him Wolf, Block, Schorr Solis-Cohen, for Colonial Assurance Company, appellee.
Robert H. Malis, with him David S. Malis, for Edward Kolsky Son, Inc., appellee.
The judgment of the court below is affirmed on the opinion of President Judge MacNEILLE.