47 Mo. 93 | Mo. | 1870
delivered the opinion of the court.
In 1857 the plaintiff was incorporated (Sess. Acts 1856-7, p. 564), and by the terms of the charter all who took out policies were to become members. Defendant was insured in 1859 and gave his premium note, upon which suit is now brought. But in the meantime, to-wit, in January, 1864 (Sess. Acts 1863-4, p. 347), a new charter is obtained, which does not purport in terms to be an amendment of the old one, but has precisely the same title and embodies most of its provisions, with the addition of certain new ones. It provides (§1) that “the present directors [naming them] of the Hope Mutual Eire Insurance Company of St. Louis, and all other persons who may hereafter become members of said company in the manner herein prescribed, be and the same are hereby incorporated,” etc. The first charter provides for sixteen directors, and the last for twelve. • By the first charter there is but one department; while by the last, separate departments are created for the city and country, and there are some other not very important changes.
, The defendant claims that the second charter creates an entirely independent company, which is the present plaintiff; that he gave that company no premium note and is not holden to it; while, on the other hand., counsel for plaintiff contend that the second charter is but an amendment or supplement to the first. Under our present constitution it could not be treated as an amendment, both from defect of title and from want of proper specifications in regard to the act repealed. But under the constitution then in force, if, from the general scope of the act, we find that it was intended as such amendment or supplement, we must so treat it.
It can not be an amendment, says the defendant, or at least such a one as leaves the old corporators in the company, because
But defendant also contends that, inasmuch as this company was expressly exempted .from the operation of the general law of corporations then in force, reserving to the Legislature the power of amendment and repeal (R. C. 1855, p. 871, § 7), the new act should have been accepted by the company instead of the directors ; and, not having been so accepted, the company acting under it has no legal existence. It is true that the directors of a moneyed corporation, when the Legislature has parted with control over the charter, have in general no power to procure or validate by consent such changes in the charter as require the assent of the corporation. They are the mere agents of the corporators ; are imperatively bound and limited by the charter and
In the case a.t bar, the liability of defendant does not arise by virtue of the amendment, nor does it appear that it is in any way affected by it. He can not in this collateral way dispute its adoption ; but if, as a stockholder, he objects to it, he should put its
The suit was commenced before a justice of the peace, and, as a statement of the cause of action, the plaintiff filed an official certificate of an assessment upon defendant’s policy, and after the case had been appealed to the Circuit Court, and all the evidence was offered, defendant asked for an instruction that plaintiff could not recover because this was not the instrument upon which suit was brought, and the premium note should have been filed with the justice. The note embraces the contract upon which the action is founded, but the fact- that the plaintiff failed to file it was not fatal to the suit. It was an irregularity which could have been corrected by filing the proper paper when the objection was raised, and does not vitiate the judgment if the trial is suffered to proceed without raising it. (Sublett v. Nolan, 5 Mo. 516; Boatman v. Curry, 25 Mo. 433.)
We find no error in the proceedings of the Circuit Court, and the judgment of affirmance in the District Court is affirmed.