Opinion
March 8, 1907.
Arnold L. Davis, for the appellant.
Holmes Jones, for the respondent.
The complaint alleges that on the 2d day of November, 1903, through plaintiff's general agents and managers, the defendant Ring was appointed local agent for plaintiff, with power to write and issue policies of fire insurance, and that thereafter and on the 9th day of August, 1904, such appointment was revoked and annulled, and that notwithstanding such revocation the defendant continues to act as agent, claiming the power to write and issue insurance policies binding upon plaintiff. The relief asked is that the defendant be restrained and enjoined from issuing insurance purporting to bind plaintiff, and that he be required to deliver up all policies and books pertaining to such agency. The contract appointing the general agents of plaintiff, who appointed defendant, and his contract with such general agents, as well as the revocation of agency, are annexed to the complaint and made a part thereof.
By the contract that was entered into with defendant by the general agents of plaintiff the agency was to continue for a valuable consideration for the period of five years. This provision of the contract with respect to the period for which the agency should continue was deemed by the learned court below in considering the demurrer interposed by defendant as controlling upon the right to terminate the agency, and hence he concluded that because there was no legal right to revoke the agency, it remained unrevoked, and that the agency still continued, and that, therefore, the complaint stated no cause of action. The question presented is not whether the plaintiff had any right to discharge the defendant and terminate his agency, but whether either rightly or wrongly it has in fact done so.
The complaint shows that plaintiff has terminated the agency and revoked defendant's authority to write policies of insurance in its behalf. This being the fact defendant has no further right to continue to act as agent or to assume to write contracts of insurance binding upon plaintiff, and plaintiff has the right to enjoin him from continuing so to do. The continuance of such a practice might be highly injurious to plaintiff and equity will aid in enforcing its discontinuance. If the plaintiff has been guilty of a breach of its contract with defendant he has his remedy for damages, but he cannot continue to act as agent after revocation, although such revocation may have been wrongful. The complaint, therefore, states a good cause of action and the demurrer was improperly sustained.
The interlocutory judgment sustaining the demurrer should be reversed, with costs, and the demurrer overruled, with costs, with leave to the defendant to withdraw demurrer and to plead over on payment of costs in the court below and of this appeal.
PATTERSON, P.J., INGRAHAM, McLAUGHLIN and SCOTT, JJ., concurred.
Judgment reversed, with costs, and demurrer overruled, with costs, with leave to defendant to withdraw demurrer and to answer on payment of costs in this court and in the court below. Order filed.