5 F. Cas. 60 | D. Wis. | 1870
A policy was issued for four years, under the amendment to the charter of the company, upon receipt of the note in suit for the payment of the annual premium. It is contended by the defendant's counsel that the premiums should be paid in cash simultaneously with the delivery of the policy, and that the company could not accept a note payable at a future time. The object of the amendment to the charter was to invest in the company the additional power to issue policies as a stock company for a specific rate of premium to be paid in cash. Insurance under this act may be made in the same manner as by other insurance companies not mutual. Policy holders stand in a different relation to the company from those under the mutual system. The insured under the amended charter are not members of the company, nor entitled to a share of the profits, premiums, or earnings of the company, nor subject to losses. I do not think the act requires premiums to be paid [in cash]
It is not necessary to consider the question whether the defendants are estopped from making this defense. The note in suit is a portion of the capital of the company for the-payment of losses by fire. If defendants’ property, covered by the policy, had been damaged or destroyed by fire, the company was bound by its contract of insurance to-pay the loss. And in case of distribution of assets among creditors under the bankrupt act, defendants would be entitled' to their-pro rata share. The note, being accepted by the company in lieu of cash paid at the date of the policy, is recoverable .as so much assets. and defendants are in no worse condition by giving the note in lieu of paying the premium. Hone v. Boyd, 1 Sandf. 481; White v. Height. 16 N. Y. 310; Sterling v. Mercantile Mut. Ins. Co., 32 Pa. St. 75; Sands v. Hill. 42 Barb. 651; Huntley v. Beecher. 30 Barb. 580; Alliance Ins. Co. v. Swift. 10 Cush. 433; Huntley v. Merrill, 32 Barb. 626; Clark v. Middleton, 19 Mo. 53. Upon the same principle, the insolvency of a corporation is no ground for restraining collection of subscriptions for stock. Dill v. Wabash Val. R. Co., 21 Ill. 91. And stockholders are liable on their subscription to the stock of an insolvent company. Ogilvie v. Knox Ins. Co., 22 How. [63 U. S.] 380. Judgment for plaintiff.
[ From 2 Biss. 244.]