Rippelmeyer v. P. Hanson Hiss Manufacturing Co.

Schmucker, J., delivered the opinion of the Court. This is an appeal from an order of the Circuit Court of Baltimore City rejecting a claim filed by the appellant as a creditor of the P. Hanson Hiss Co., whose assets were being administered in equity under an assignment made by it for the benefit of its creditors. The appellant is an insurance broker, and in the course of his business he placed all of the fire insurance of the Hiss Co. from the year 1888 down to the latter part of 1895. In procuring this insurance the appellant paid out of his own money the premium on each policy as it was issued, ³⁸⁷ and then rendered monthly bills for the premiums so paid to the Hiss Co. On the payment by the Hiss Co. to the appellant of each of these bills he allowed a rebate or deduction averaging about io per cent of the face of the bill.

The total premiums on this insurance amounted to $14,047.50 and the rebate thereon amounted to $1,404.75. The appellant in his testimony taken under the exceptions to his claim explained the allowance of this rebate as follows : He said that Ernest Gittings, who had at one time been his clerk, met him on the street one day in 1888, after he had left his employment, and told him that he (the appellant) could get the placing of all of the insurance of the Hiss Co. Upon application to that company the appellant was informed that he could have the procuring of the insurance, but the business must be conducted under the name of Ernest Gittings. He agreed to these terms, understanding them to mean that Gittings was to receive a commission on the business, and he regularly thereafter allowed the 10 per cent rebate, when the monthly bills for insurance premiums were paid, under the impression that it was intended to go as a commission to Ernest Gittings, whom he then supposed to be a licensed insurance broker. The books of account of the appellant were produced in evidence and the account of this insurance appeared thereon in the name of Gittings, who was charged with the premiums and credited with the commissions and with the cash from time to time paid by the Hiss Co. in settlement of the monthly bills.

The appellant further testified that about July, 1895, he discovered that Gittings was not a licensed broker and had not in fact been paid by the Hiss Co. the commissions allowed to them. He then demanded a return from the Hiss Co. of the rebate or commission theretofore allowed, and his demand having been refused he attempted to recover the amount from that company by an action in assumpsit, Before this suit came to trial the company made an assignment for the benefit of its creditors, and the , appellant proved his claim in the trust-estate case. ³⁸⁸ The auditor allowed the claim but it was excepted to by the Hiss Co. and also by certain of the creditors. Testimony was taken, under the exceptions, for and against the claim, and the Court after hearing the case passed the order sustaining the exceptions and rejecting the claim, from which this appeal was taken. A careful examination of this testimony shows that it fails to sustain the appellant’s contention and satisfies us that his claim was properly rejected by the Circuit Court.

William Tegeler, who was book-keeper of the Hiss Co. during the period covered by the insurance, was put upon the stand by the exceptants and he testified that he was familiar with all of the items of the appellant’s account and that it was not correct, because it was' distinctly understood by all parties to the transaction that the rebate allowed on the insurance premiums was to