See also Sec. 11 as to license requirements.
"It is settled beyond controversy in this state that a broker who is employed to secure insurance is the agent for the insured and not for the company."8
"It is equally well settled that a broker or agent employed merely for the purpose of procuring insurance has no implied authority to cancel or to accept an operative notice of cancellation."9
Brokers are liable where they undertake to procure insurance and utterly neglect to obtain any insurance, or fail to carry out material provisions of their agreement, and a loss results. In such a case, they are said to be liable for as much as would have been covered by the insurance which they agreed to procure.10
A fire insurance agent employed to negotiate a policy who, having knowledge that his principal's property is already insured, procures and delivers to his principal another policy containing a clause that it is void in case of other insurance not expressly permitted in the new policy, is guilty of negligence and liable to his principal, for the resulting loss. The failure of the principal to examine the policy delivered by his agent and discover the defect does not exonerate the agent, or constitute a waiver of his claim, for waiver can only exist where there is knowledge on the part of the person making the waiver.11
"It seems to be settled law that if an agent is personally interested in the property insured, no policy issued by him thereon, or act done by him in connection therewith, binds the insurance company, unless known and assented to by it."12
This is so because the law does not permit an agent to bind two parties having opposite interests, nor to be a party on the one side and the agent of the opposite party on the other, unless both parties know of the dual relation and assent to it.13
7Smith Lumber Co. v. Colonial Assurance Co., 172 App. Div. 149; 158 N. Y. Suppl. 198 (1916).
8Hiring Northrup v. Piza, 43 App. Div. 284; 60 N. Y. Suppl. 363; affd. without opinion, 167 N. Y. 578; 60 N. E. 1117; Morris v. Home Ins. Co., 78 Misc. Rep. 303; 139 N. Y. Suppl. 674.
9Condon v. Exton-Hall Brokerage & V. Agency, 80 Misc. 369, 371; 142 N. Y. Suppl. 548 (1913); Tacoma L. &. T. Co. v. Firemen's Fund Ins. Co., 151 Pac. 91 (Wash. 1915); Richards on Insurance (3rd ed.), 388, 389.
10 Rezac v. Zima, 96 Kan. 752; 153 Pac. 500 (1915); Milliken v. Woodward. 64 N. J. L. 444; 45 All. 796; Lindsay v. PettiKrew, 5 S. D. 500; 59 N. W. 726; Sawyer v Maynew, 51 Me. 398; Diamond v. Duncan, (Tex. Civ. App.) 138 S. W. 429; Mal-lerv v' Frye, 21 App. D. C. 105; Criswell v. Riley, 5 Ind. App. 496; 30 N. E 1101; 32 N E 814; Backus v. Acmes. 79 Minn. 145; 81 N. W. 766; Brick Co. v. Hogsett, 73 Mo. Amp. 432; Note, 38 L. R. A. (N. S.) 631. ,.
11 Israelson v. Williams, 166 App. Div. 25; 151 N. Y. Suppl. 679 (1915).
12Dull v. Royal Ins. Co., 159 Mich. 671; 124 N. W. 533; 16 Det. Leg. N. 975 (1910); citing 1 May on Insurance. Sec. 125; 3 Cooley's Briefs on Insurance, 2529; 22 Cyc. 14351 Zimmerman v. Ins. Co., 110 Mich. 399; 68 N W. 215; 33 L R 698; Spare v. Home Mut. Life, (C, C.) 19 Fed. 14; Ritt v Ins. Co 41 Barb. 353; Arispe Mercantile Co. v. Capital Ins. Co., 133 lowa 272; 110 N W. 593; 9 L. R A
(N. S.) 1084; Greenwood v. Ins. Co., 72 Miss. 46; 17 So 83; Wildberger v. Hartford Fire Ins Co 72 Miss 338; 17 So. 282; 28 I.. R. A. 220; 4S Am. St. Rep. 558; N. Y. Central lns. Co. v. Natl. etc.. 14 N. Y. 85; Rockford Ins. Co. v. Winfield 57 Kan. 576; 47 Pac. 511; Glens Falls Ins. Co. v. Hopkins, 16 111. App. 220; British Ass. Co.' v. Cooper, 6 Colo. App. 25; 40 Pac. 147.
Add to footnote 28 (p. 77):
Singer v. National Fire Insurance Co., 154 App. Div. 783; 139 N. Y. Suppl. 375 (1913).