Before BIGGS, GOODRICH, and KALODNER, Circuit Judges.
In July, 1942, plaintiff issued a Workmen's Compensation insurance policy to the defendant through its general agent, Fried and Fishman Company, Inc. The latter firm was also engaged at the time in a general real estate brokerage business, and acted as the rental and management agent of the defendant's housing development in Camden County, New Jersey.
Monthly statements were rendered by Fried and Fishman to the defendant itemizing rental income, commission charges and disbursements for advertising, repairs, insurance, mortgage interest, real estate taxes, etc. The December, 1943, statement charged the defendant with the $3600.26 insurance premium involved in the present appeal,*fn1 listing it as a payment made to "F. & F. (Audit for Comp.)". Although Fried and Fishman so charged the defendant's rental account with the payment of the premium, it failed to account to the plaintiff. The latter brought suit for this, as well as other premiums, in June, 1947. At the trial, defendant contended that payment had been made of the $3600.26 when Fried and Fishman deducted that sum from the rental account and credited itself with the receipt of that amount as above stated. The defendant admitted liability as to the other premiums totaling $490.58 plus interest of $75.68, or a total of $566.26.
On the record as stated both plaintiff and defendant moved for directed verdicts. The defendant's motion was denied and the plaintiff's motion granted. The instant appeal followed.
To the defendant's contention, here as below, that there was a payment of the premium to the plaintiff, the latter asserts that it is the law that an agent cannot agree that a credit on his private indebtedness to the insured shall constitute payment of the premium on the policy.*fn2 Here, says the plaintiff, the agent was indebted to the defendant to the extent of his rental collections and he could not satisfy any part of that indebtedness by accepting a credit on it in payment of the premium.
The authorities relied on by the plaintiff in support of its contention are in no way dispositive of the issue in the case sub judice.Parenthetically, it may be noted that it has not cited any New Jersey decisions, although the insurance policy was issued in New Jersey and accordingly, the law of New Jersey governs, as we held in Wooton Hotel Corporation v. Northern Assur. Co., Limited, 3 Cir., 1946, 155 F.2d 988.*fn3
Proceeding to a consideration of the New Jersey cases, as we are required to do under Erie Railroad Co. v. Tompkins, 1938, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, we find that payment to an agent authorized to collect premiums constitutes payment to the insurance company even though the agent fails to remit. Zriny v. Hartford Fire Ins. Co., 1932, 10 N.J.Misc. 181, 158 A. 430. The agent has no implied authority to waive payment of the premium in money and to take in lieu thereof merchandise, but should he do so testimony may be submitted to establish consent, estoppel or ratification by the insurance company. Cohen v. New Zealand Ins. Co., 1924, 100 N.J.L. 110, 126 A. 417, 418; Fidelity & Deposit Co. of Maryland v. Brocks Garage, Inc., 1918, 92 N.J.L. 239, 104 A. 132.
Pertinent to the issue here involved is the case of Carson v. Jersey City Ins. Co., 1881, 43 N.J.L. 300, 39 Am.Rep. 584. There, the agent, on delivering the policy, received the insured's note payable to him individually. The agent took the note to his own bank, discounted it and the proceeds were credited to his account. Subsequently the insured suffered a loss by fire. The following day the agent remitted to the insurance company. The note itself was not paid by the insured until after the fire. The insurance company, having received information of the fire, refused to accept the agent's remittance, contending that the mere acceptance by the agent of the insured's not did not constitute payment of the premium. The court ruled, however, that "* * * as soon as the note was discounted and Pearce (the agent) received the proceeds, the premium was actually paid, as much so as if he had received for it a check on a bank or an order on a third person which was paid on presentation." The opinion pointed out that the significant fact was that funds of the insured had come into the hands of the agent. Said the court (page 309 of 43 N.J.L.):
"The agent had authority to receive the premium for the company.Payment of it to him was payment to the company; and when the money for it actually came into his hands from the discounting of the note, the premium was actually paid * * *."
Of particular significance is the reference in the Carson case to Chickering v. Globe Mut. Life Ins. Co., 1874, 116 Mass. 321, where it had also been held that when the funds of the assured come into the hands of the agent there is a payment binding on the insurance company. In that case one Osborn was the agent of the insurance company. He was also the agent of the firm of Chickering & Sons for the sale of pianos. It was the practice for the firm to pay the insurance premiums of its partners, one of whom was a Colonel Chickering. There was also a "general understanding" between Osborn and the Chickerings that any charge which Osborn had against the Colonel for insurance premiums "should be set off" against any charge which Chickering & Sons should have against him. The Colonel's premium on a life insurance policy became due February 9, 1871. Some time prior to that date Osborn told the Colonel he had "taken care of" the premium for him. Osborn was indebted to the Chickering firm on a running account between them. The Colonel died on February 14, 1871, before Osborn had remitted to the insurance company. Under the terms of Osborn's insurance agency he was required to make a statement of his accounts on the first and fifteenth of every month on all premium collections and to remit at the same time. The insurance company refused to make payment on the policy contending that there had not been a payment of the premium. Suit was brought by the decedent's widow and the insurance company defended on the specific ground that "in the absence of usage or express contract, an agent cannot receive payment of a debt due his principal by offsetting his private debt."
The court held that if the facts as related were established, there was a valid payment of the premium under the circumstances. In disposing of the insurance company's contention that the agent cannot receive "payment" by offsetting his private debt, the court said, page 330:
"It is objected that the effect of such an arrangement would be to render Osborn a debtor to the corporation without their consent; but it is difficult to see how it could have any effect in that respect, to distinguish it from a payment in any other mode. If it were an actual placing of money in the hands of their agent, it would add to the fund which he held in trust for the defendants, and would not make him their debtor in any other capacity or mode."*fn4
While the New Jersey courts have not squarely ruled on the question here involved, we believe that the New Jersey view is indicated by the specific ruling in the Carson case and its citation, with apparent approval, of the Chickering case.Our belief is strenthened by the reference, by the Court of Errors and Appeals of New Jersey, in Cohen v. New Zealand Ins. Co., supra, the ...