#### Prichard, Respondent, vs. Deering Harvester Company, Appellant.

*February 7*

February *24, 1903.*

(1, 2) *Agency contract: Construction: Duty of agent to insure goods.*(3) *Appeal: Errors available: Motion for new trial.*

1. Plaintiff’s contract with a harvester company, signed by him December 21, 1897, and accepted by the company February 8, 1898, provided that he should be the company’s agent for the “entire season of 1898;” that he should hold all goods received by him, until sold and delivered, as the property of the company and as a special deposit for it, until it should, be fully settled with; and that he should safely house or store and insure at his own expense all goods on hand at any time. On October 28, 1898, the company’s traveling representative checked up plaintiff’s accounts and stock on hand, and plaintiff gave a receipt *98for such. Stock, "to keep and hold the same subject to the terms” of said contract. On January 10, 1899, before there had been a full settlement with the company under said contract, and before a new agency contract, signed by plaintiff, had become binding by acceptance, the goods in his possession were destroyed by fire while uninsured. *Held,*that the words “entire season of 1898” fixed only the term of plaintiff’s agency, but did not limit the period during which he was bound to safely keep and insure the company’s goods; and that he was liable for loss caused by his failure to have the goods insured at the time of the fire.

[2. What period of time is covered by the term “entire season of 1898” in such contract, not determined.]

3. Where errors, duly excepted to, appear in the proceedings prior to verdict and judgment, no motion for a new trial is necessary to make them available on appeal.

Appeal from a judgment of tbe circuit court for Pierce county: E. W. Helms, Circuit Judge.

*Reversed.*

Action to recover back money paid by plaintiff to defendant upon an alleged mistake, under substantially tbe following facts:

On December 21, 1891, plaintiff, wbo bad been defendant’s agent during previous years, signed an agency contract, to become binding upon tbe defendant wben accepted at tbe borne office in Chicago, wbicb was not done until February 8, 1898. Sucb contract provided tbat plaintiff should be defendant’s agent for tbe “entire season of 1898,” and required him to “bold all goods shipped or received, until sold and delivered, and tbe entire -proceeds of all sales as tbe sole property of said *Deering Harvester Oo.*and as a special deposit for it, until it shall be fully settled with. ... To insure from loss or damage by fire, in a reliable company, by policy in tbe name of *Deering Harvester Go.,*at expense of said agent, all of said company’s goods on band at said agency at any time, for at least three fourths of tbe net price while in bis or their custody,” and to “safely bouse or store . . . all goods on band at any time.” On October 14, 1898, á traveling representative of tbe defendant checked up plaintiff’s *99accounts and stock on band, and made a list of tbe latter, and plaintiff gave a receipt, entitled “Receipt for Unsold Goods on Hand,” acknowledging tbe possession- of said goods, that tbe same were unsold and unsettled for, and that be agreed “to keep and bold tbe same subject to tbe terms” of tbe aforesaid agency contract. About December 5, 1898, plaintiff, together witb a traveling representative of tbe defendant, signed a new annual agency contract for tbe season of 1899 — not to be binding upon tbe defendant until accepted by it at Obicago. There was some evidence that Such acceptance never bad taken place. On January 10, 1899, while tbe goods mentioned in tbe said-receipt were still on band, and while tbe balance due from plaintiff under tbe contract for tbe year 1898 was still unpaid, a fire occurred, without plaintiff’s negligence, whereby all of said property was destroyed, to tbe value of about $725; there being no insurance thereon. Early in April, plaintiff entered into an agreement for compromise of bis liability for failure to maintain insurance, and paid to tbe defendant tbe sum of $362.97 upon such compromise, and at tbe same time settled and paid tbe balance due upon tbe contract for tbe season of 1898 for goods sold but not paid for. Plaintiff testifies that at tbe time'of making such settlement be supposed that tbe new agency agreement, signed December 5, 1898, was in force at tbe time of tbe fire, and that be was liable thereunder, and that be did not learn until some time in tbe following summer that tbe company bad never approved that contract and bad never considered it in force.

At tbe close of tbe evidence the defendant moved for a direction of a verdict, which was overruled, and the case was submitted to tbe jury upon tbe theory that plaintiff would not have been liable for failure to insure unless a new contract for tbe season of 1899 bad been made before tbe fire, and therefore would be entitled to recover if be, in tbe exercise of due care, mistakenly supposed, at tbe time of tbe making of *100tbe payment, that sucb contract bad become valid and binding. Under tbis instruction tbe jury found a verdict in bis favor for tbe amount paid, witb interest thereon, $420, for which judgment was rendered in bis favor; from which defendant appeals.

*A.*Qombaclcer, for tbe appellant.'

For tbe respondent there was a brief by *Walter 0. Owen*and *F. M.*White, and oral argument by *Mr. Owen.*

Dodge, J.

Tbe question upon which recovery was made to depend in tbe trial court, namely, whether plaintiff mistakenly believed that at date of tbe fire a new contract existed, covering tbe season of 1899, was material only in case plaintiff’s liability to maintain insurance depended upon tbe fact so believed in. If be owed that duty otherwise, tbe mistake as to existence of tbe new contract certainly cannot be conclusively presumed to have induced him to compromise and satisfy tbe damage resulting from breach of sucb duty. Tbe court expressly instructed tbe jury that plaintiff would not have been bound to maintain insurance if tbe new contract bad not been finally accepted prior to January 10, 1899. Appellant contends that respondent was so bound by tbe contract for tbe “entire season of 1898.” If so, all other subjects of discussion become immaterial. We therefore proceed to consider that document. By its terms, all goods received by respondent remain tbe property of tbe company, and be agrees to bold them “as a special deposit for it, until it shall be fully settled witb.” Tbe evidence certainly did not show conclusively that at tbe time of tbe fire these goods bad been sold and delivered, nor that tbe company bad been fully settled witb. They were, therefore, in respondent’s bands ás a special deposit for appellant. We cannot doubt that they were “company’s goods on band,” within tbe paragraph of tbe contract requiring maintenance of insurance. Every reason for tbe latter requirement would indicate identity be*101tween tbe goods wbicb wexe to remain the company’s property on special deposit, and those which must be kept insured in its name. Neither can we doubt that the duty to insure was commensurate in time with the duty to hold the goods as special deposit. This term, according to the words of the contract, runs until the goods are delivered, and would therefore *-prima, facia*require maintenance of insurance so long as they remained in respondent’s possession.

The circuit court seems, however, to have considered that these plain words were overcome in some way and some other limit to plaintiff’s duty prescribed. Respondent’s counsel seems to deduce such result from the provisions of the first paragraph of the contract, whereby plaintiff is appointed agent for “the entire season of 1898.” The argument is faulty in more respects than one. Thus, the period of time covered by the “entire season of 1898” is not very certain. Does that mean merely until the season for selling harvesters and mowers is over, or until the next annual season commences ? From our general knowledge of such agency contracts, and from matters appearing in the evidence and the correspondence, the latter seems the more probable meaning. We find correspondence and dealings between these parties indicating a mutual understanding that plaintiff was the local representative of defendant at dates remote from the harvest season; and it is, we believe, customary with farm implement dealers to maintain local agencies the year round, accessible for information, for obtaining extra parts, and the like; also for keeping of machines and extras left over after harvest, instead of reshipping the same to the factory. If the words in question were intended to cover a period of a year, or until agency contract for 1899 should be perfected, of course the loss occurred within the term, for the contract did not take effect until February 8, 1898, and its year had not expired. But whatever the significance of these words, they, at most, serve only to prescribe the term of plaintiff’s agency, and do *102not expressly limit tbe period during wbieb be agrees to safely bold tbe goods and maintain insurance. It is entirely consistent that, in consideration of bis employment as agent for a shorter period, plaintiff should agree to safely keep and insure all goods until delivered up to bis principal, and we cannot think tbe plain words of tbe contract to that effect are overcome by prescribing tbe season of 1898 as tbe term of tbe agency. That tbe parties did not understand them to be so limited is plainly shown by tbe acknowledgment given October 28, 1898, long after harvest, specifying tbe goods then remaining, and agreeing to keep and bold tbe same *under the terms of the agency contract.*

We are satisfied that tbe true construction of tbe existing contract required plaintiff to maintain insurance upon tbe defendant’s goods in bis possession January 10, 1899, and therefore that tbe circuit court erred in instructing tbe jury that no such duty rested on him unless tbe new contract bad been completed before that date, and that be might recover back if be paid on mistaken supposition of such completion. For tbe same reasons, we must bold that error was committed in denying defendant’s motion to direct a verdict in its favor.

Inasmuch as these errors, with due exception, appear in tbe proceedings prior to verdict and judgment, no motion for a new trial was necessary to make them available on appeal, and we need not consider some questions of practice which are raised upon tbe sufficiency of that motion and mode of its disposal.

*By the Oourt.*— Judgment reversed, and cause remanded for new trial.