Baltimore Fire Insurance v. McGowan, 16 Md. 47

16 Md. 47 | Md. | 1860

Le Grand, C. J.,

delivered the opinion of this court.

This was, originally, an action of covenant brought by the appellees, on a policy of insurance, issued by the appellants. The policy was dated the 22nd of October 1853, and on a stock of groceries. It was for one year, with the privilege of renewal, so long as the company should continue to receive the premium on the risk. During the first 3rear the premium was paid for the second year. The loss-took phice on the 9th of December 1854, and the suit was brought by the appellees to recover its amount. The policy was issued to J. McGowan fy Sons. At the time of its issual, the firm of J. McGowan & S'ons was composed of J. McGowan and the appellees. John McGowan retired from the business and firm, on the 2nd of May 1854, the business being conducted thereafter by the appellees, (William and John O. McGowan,) under the name of John McGo-wan & Sons.

At the trial, on the motion of the plaintiffs’ counsel, the court allowed the writ and nar. to be so amended as to change them from covenant to assumpsit. To the allowance of this amendment, the appellants excepted. The record shows, that, after the amendment was made, the jury were sworn “to say the truth in the premises,” between the plaintiffs and the defendants. The Act of lSS^, chapter 177, section 1, is without limitation as to the power of the court to permit amendments to any proceedings, including the writ or summons, so that the case may be tried on its real merits, and the purposes of justice subserved. It expressly provides, that writs may be amended from one form of action to another, when the ends of justice require it. We do not think the court exceeded its power in granting the application of the plaintiffs.

There was much said, both in the evidence and arguments of counsel, in relation to preliminary proof, to the comprehensiveness and meaning of the word “groceries,” and other matters, which need not be commented upon, because, we are of opinion the appellees cannot recover in this action for any loss intended to be insured against by the appellants.

The policy underwritten is a sealed instrument. The company had no authority to issue • any other than a sealed policy. The Kkh section of its charter, the Act of 1807, chapter 68, declares, “that all policies of insurance made by this corporation shall be signed by the president, and attested by the secretary, and sealed with the common seal, and all losses on any such policy or policies shall be adjusted by the president and board of directors, and paid, agreeably to the terms of the policy, out of the funds of the company.”

This prohibition, if there were none other, would be a sufficient answer to the plaintiffs right of recovery in this action. In the case of The Penn. & Maryland Steam Navigation Co. vs. Dandridge, 8 Gill & Johnson, 318, the court, adopting the doctrine as laid down in Angelí and Ames on Corporations, observes “that a corporation and an individual stand upon very different footing. The latter, existing for the general good of society may do all acts and make all con"tracts which are not, in the eye of the law, inconsistent with the great purpose of his creation; whereas, the former having been created for a specified purpose, cannot only make no contract forbidden by its charter, which is, as it were, the law of its nature, but, in general, can make no contract which is not necessary, either directly or incidentally, to enable it to answer that purpose.” Substantially the same principles was adopted in Albert and wife vs. Savings Bank and others, 2 Md. Rep., 159. But, in addition to this, the language of the policy aud of the renewal receipt is a conclusive bar to the plaintiffs recovery. The policy provides that “this insurance shall continue and be in force from the expiration of the time before mentioned for its duration, so long as the said assured, or their assigns, shall continue to pay the like rate of premium, as hath been paid for this insurance, and so long as this corporation shall agree to' accept, and actually receive, the same from the assured,” &c.

The plaintiffs claim that the renewal receipt was a parol and new contract, and not an extension for another year of the original sealed one. This view cannot be sustained by the receipt. It is just as positive the other way as is the policy. 'It expressly declares that, the premium is received under the original policy, and that, by it, the policy is “continued in force, and will terminate at 12 o’clock, noon, on the 22nd day of October 1855.”

The case of Luciani vs. The American Fire Insurance Co., 2 Wharton, 167, is not available for the purpose for which it was cited at the bar. All that case decided was, that an action of covenant could not be sustained by virtue of endorsements on the policy, not under seal, to the effect that the insurance had been enlarged as to the amount as also the premium. It was held that these endorsements did not continue the policy as a specialty, but that the plaintiff might have.demanded a policy in conformity with the clause in the policy, or, perhaps, as suggested by C. J. Gibson, without deciding it, he might maintain assumpsit. That case is distinguishnble from this in the fact, that there was not In,, it, as there is in the present one, a contract under seal for the ¡■nntinuance of the policy. Here the receipt, does not evidence a new coutract, but an extension of the original. By the covenant between the parties, the policy was to be for one year, or longer, on payment of the premium. There is nothing in the receipt to show, that there was a new contract of insurance with other persons, yet, other persons, not the original covenantees are here seeking to recover upon the policy. The plaintiffs are neither the covenantees nor their assignees. It is impossible, on the face of the plaintiffs’ own evidence to hold, that the contract of insurance, from the 22nd of October 1854 until the 22nd of October 1855, was by parol. The only evidence on the point is all one way, and is clear, that the original sealed contract was not replaced by another and different one, but, continued in force. But, whether specialty or parol, no action could be maintained on the contract except by the parties insured. It is a joint contract, and whatever sum could be recovered would he in solido; “a contract with several persons, for the payment to them of a sum of money, is a joint contract with all, and all the payees have therein a joint interest, so that no one can sue alone for his proportion.” 1 Parsons on Contracts, 13.

If these views be correct then it follows that, the court erred in the rejection of the defendant’s third, fourth and fifth prayers, and in granting the plaintiffs’ prayers. The defendant’s prayers denied the right of these plaintiffs to recover and were in their nature demurrers to the sufficiency of the evidence.

We abstain from all comment upon the merits of the claim or those of the defence, or of the degree of credibility which ought to be assigned to the conflicting testimony of the witnesses. The objection to the action is one founded in the rules of the law, and however hard they may bear in any particular case, it is not for the courts to infringe on their efficiency.

Judgment reversed.

(Decided June 1st, 1860.) Per Justices Eggleston and Bartol:

In regard to so much of the opinion of the Chief Justices denies the right of the appellants to bind themselves by a policy not under seal, we express no opinion.