delivered the opinion of the Court:
This was an action, brought by Elizabeth Ward, in the Superior Court of Cook county, against the Lycoming Fire Insurance Company, on a policy of insurance, executed by the defendant to the plaintiff on the 24th day of April, 1874, insuring the property of the plaintiff for one year in the sum of |1500.
On a trial of the cause before a jury, the plaintiff recovered a verdict and judgment for the amount of the policy and interest, to reverse which the defendant appealed.
The first error complained of is, the decision of the court in overruling defendant’s challenge to five persons, Hansen, Folz, Wood, Carney and Able, called as jurors. These jurors *547were on the regular panel, but they had heard a part of the evidence given in a case which had just been tried in the court between the same plaintiff against the German Insurance Company of Freeport, where the questions involved were similar to those in the present case.
If a juror has made up a decided opinion on the merits of the case, either from a personal knowledge of the facts, from the statement of witnesses, from the relations of the parties or from rumor, and that opinion is positive and not hypothetical, and such as will probably prevent him from giving an impartial verdict, as held in Smith v. Eames, 3 Scam. 76, the challenge would be w'ell taken, and should be allowed. But these jurors had no fixed or decided opinion in the case. If they had any opinion whatever, from what they had heard during the trial of the other case, it was merely hypothetical, and would not prevent a fair and impartial judgment on the facts as they might be proven on the trial.
The policy of insurance read in evidence contained the following provision : “ It is expressly understood, and a part of this contract, that any person, other than the assured, who may have procured this insurance to be taken by the company, shall be deemed to be the agent of the assured named in this policy, and not of this company, under any circumstances whatever, or in any transaction relating to this insurance.”
Another condition attached to the policy provided: “This company shall not be liable by virtue of this policy, or any renewal thereof, until the premium therefor be actually paid.” The premium for the policy had never been received by the company, and it contends the policy was void, while, on the other hand, the plaintiff claims that she paid the premium.to one Chas. Puschman, with whom she contracted for the insuránee, and of whom she obtained the policy; and, under the circumstances connected with the transaction, the company is in no position to deny the validity of the payment, and upon this point the plaintiff introduced evidence to prove what was said and done between Puschman and herself, prior to *548and at the time she contracted with him for the insurance, and that she paid him for the policies. The admission of this evidence was objected to at the time, and it is now relied upon as error.
Puschman was, at the time, an insurance broker or a street solicitor of insurance. He came to the plaintiff and represented that he was agent for the Lycoming Fire Insurance Company and the German Insurance Company of Freeport, and solicited the risk upon her property. He examined the property, and agreed to insure it in the two companies in the sum of $1500 in each, for a premium of $45 in the Lycoming, and $37.50 in the German Company, making a told premium for the entire insurance of $82.50. The plaintiff agreed to insure, and Puschman returned in a day or two with the two policies executed, and delivered them to her, and agreed that she might pay the premium in ninety days. On the 5th day of May, 1874, she paid Puschman cash, $30, drinks and cigars in her saloon, $2.50; June 6th, cash, $15; June 10th, cash, $35,—in all, $82.50. 'No part of this money was, however, ever paid over to the company by Puschman.
It is clear, that if the plaintiff had contracted with an agent of the company for the insurance, and paid such agent the premium, the payment would have been binding on the company whether the agent paid over the money or not, and it is doubtless true that if the plaintiff had paid the premium to Puschman, at the time knowing that he was not the agent of the company, but only a street insurance broker, the policy could not be enforced, if Puschman failed to pay over the money.
Again, if the plaintiff dealt Avith Puschman as the agent of the company, believing him to be such, and did not employ him to act for her as her broker in obtaining the insurance, he would have no power to act for or bind her. Under such circumstances, we are of opinion the testimony objected to Avas proper. The plaintiff had the right to prove what the contract was. If Puschman Aras not her agent or broker, it AAras *549proper to prove that fact. If she dealt with him as the agent of the company, that was proper to be proven. Indeed, what was said and done by the contracting parties may be regarded as a part of the res gestee, and admissible for the consideration of the jury.
In regard to the evidence that payment was made to Puschman by the plaintiff, we. perceive no valid objection that can be urged against it. Puschman represented himself to the plaintiff as an agent of the company, he examined the property to see if the risk would be a safe one, he conducted himself in all respects as an agent clothed with authority to act, and after he had agreed with the plaintiff to insure her property, he returned with the policy, properly executed, ready for delivery. The plaintiff accepted the policy, and paid the premium in good faith, under the belief that Puschman was the’ agent of the company.
Under such circumstances, who should bear the loss arising from the fraud committed by the street broker? Should ic fall upon the pi lintiff, who was an innocent party in the transaction, or should it fall upon the company, who alone enabled Puschman to successfully consummate the contract of insurance by placing in his hands the policy for delivery ? The street broker was not the agent of the plaintiff for any purpose. If the evidence be true, he had no authority to act for her or bind her in any manner whatever by what he might do in the premises, and while he may not have been, in fact, the agent of the company, still, the company, by placing the policy in the hands of the street broker for delivery, is estopped from claiming that the payment made to him upon delivery of the policy is not binding upon the company.
It may be true that the amount which was received by Puschman out of plaintiff’s saloon can not be regarded as a payment on the policy, but it does not appear, from the evidence, whether this sum was to be applied in payment of the policy in suit, or the other one contracted for at the same time, and as the amount paid in cash was more than enough *550to pay the premium on this policy, we see no ground for holding that the premium was not all paid in cash. But independent of this, Puschman was entitled to commissions for procuring the insurance, as a broker, and if he saw proper to take out his commissions in the saloon, we know of no reason or authority to debar him from so doing.
Objection has been made to the ruling of the court on the instructions to the jury. The instruction given was not calculated to mislead the jury, and what has been-said in regard to the admission of evidence, substantially disposes of the questions presented in regard to defendant’s refused instructions.
Under the evidence, the plaintiff was entitled to recover, and as the record discloses no substantial error the judgment must be affirmed.
Judgment affirmed.