Rainer v. Schulte

We are constrained to hold that the amended complaint states a good cause of action against the *133defendant. Such cause of action as therein alleged is based upon an express oral agreement, whereby the defendant, in pursuance of the application of the plaintiffs and in consideration of the promise made by them, undertook and agreed to procure forthwith insurance on the building of the plaintiffs, then in process of construction, in the sum of $1,200 for the period of three years, and for which the plaintiffs then agreed to pay the defendant at the rate of eighty cents for each $100. If such was in fact the agreement made, then it was immaterial whether the defendant at the time had authority to represent and bind some unnamed insurance company or some insurance agent. Mechem, Agency, §§ 554, 558; Beymer v. Bonsall, 79 Pa. St. 298; Baldwin v. Leonard, 39 Vt. 260; Campbell v. Am. F. Ins. Co. 73 Wis. 100, 109, 40 N. W. 661; Stehlick v. Milwaukee M. Ins. Co. 87 Wis. 322, 58 N. W. 379; Oliver v. Morawetz, 97 Wis. 332, 72 N. W. 877. The defendant certainly had authority to bind himself to procure such insurance. The evidence tending to prove that the defendant made such contract was sufficient to take the case to the1 jury. According to such evidence the insurance was to be procured “forthwith.” Of course the defendant was entitled to a reasonable time within which to procure the same. The plaintiffs claim that the contract was made October 18, 1904, and that the fire occurred on the morning of October 20, 1904. We have had some doubt whether it ought not to be said, as a matter of law, under the circumstances disclosed in the evidence, that such delay in procuring such insurance was not unreasonable. But the question whether such delay was reasonable or unreasonable was one of fact, and it was fully and fairly submitted to the jury by the trial court. That court refused to set aside the verdict, and we cannot say that it is not sustained by the evidence. There are no other questions in the case calling for consideration.

By the- Court. — The judgment of the circuit court is affirmed.