Haverhill Insurance v. Prescott

42 N.H. 547 | N.H. | 1861

Bellows, J.

There is no objection to the amendment of the declaration upon the ground alleged, for the court can see that the identity of the cause of action is preserved. Stevenson v. Mudget, 10 N. H. 338. Nor is there any want of power to amend on review. Burley v. Burley, 6 N. H. 204.

The important question, then, is, whether the contract of insurance is valid in this state. By the law of this state of December, 1852 (Comp. Stat., 371, ch. 1279, secs. 4, 5, 6), it is provided that where, by the laws of another state, “ any taxes, fines, penalties, deposits of money or of securities, statements, or other obligations or requirements of any description whatever, are or shall be imposed upon any mutual insurance company, incorporated by or organized under the laws of this state,” or upon its agents, then “the same taxes, fines, penalties, deposits, statements, obligations and requirements” shall be imposed upon all mutual insurance companies existing under the laws of such other state, and doing business here; and also upon their agents.

By the lawT of Massachusetts (Laws of 1854, 773, ch. 831, sec. 1) it is provided, in substance, that no foreign insurance company shall make any insurance on property within that state, nor contract for any insurance with any party resident there, until it has complied with the provisions of that act.

By section 4 of chapter 23 of the Massachusetts General Laws (Ed. 1854, 845), it is provided that no person shall be allowed to act as agent of any such foreign insurance company until such company and such agent shall have complied with all the requirements of their laws, under a penalty of $>1,000 for each offense.

It being now admitted that the plaintiff insurance company has not, in this state, complied with the provisions of these Massachusetts laws, the question is, how far these provisions are in force in New-Hampshire, and what is their effect upon this contract.

Our law, in its terms, imposes upon Massachusetts mutual insurance companies the same obligations and requirements that the laws of Massachusetts impose upon New-Hampshire insurance companies; and to determine what is the law here, we must look at the legislation in Massachusetts. There, as we have seen, the provisions are that no foreign insurance company shall make any insurance on property in Massachusetts, or make a contract of insurance with a party resident there, until it complies with the provisions of the act; nor shall any person act as agent for such company until such compliance. If these provisions are the law of New-Hampshire, in respect to Massachusetts companies, then there is a direct prohibition of contracts to insure property in this state, by such Massachusetts company, without there has been a compliance with the requisitions of the act; and the want of such compliance being admitted, and the property insured being in this state, and the parties insured resident here, the insurance would be invalid; and, therefore, there is no consideration for the note.

Are these provisions, then, the law of New-Hampshire ? The substance of the Massachusetts enactment is, that until a compliance with certain requisitions, by such foreign insurance companies, they can make no valid contract of insurance, in respect to property there situate, or with parties tljere resident. By imposing the same obligations and requirements upon their insurance companies, our law seeks to impose the same disabilities, namely, the inability to make a valid contract of insurance on property- situated here, or with parties resident here. To require the same things to be done, but without subjecting the company to any legal disability for omitting them, is inconsistent with the manifest purpose of the act; nor does the language require such a construction. But it is said that the disability only extends to the agents of such companies; but we can not view it in that light, inasmuch as the obligations and requirements are imposed upon both the company and their agents; and we think that the compliance with such obligations and requirements must precede the power to make -such contracts in New-Hampshire. If the suit was brought by the defendants to recover back money paid by them for such illegal insurance, the court would undoubtedly decline to lend its aid, provided the parties stood in pari delicto, and so would it be in the suit before us. „

The contract of insurance, then, being invalid, the note declared on is without consideration, and this makes it unnecessary to consider the other .questions. There must, therefore, be

Judgment on the verdict.