Judkins v. Union Mutual Fire-Insurance

39 N.H. 172 | N.H. | 1859

Fowler, J.

By a special provision of the charter of the defendant corporation, which became a constituent portion of the contract between these parties, no execution can issue upon any judgment against the defendant company until after the expiration of three months from the rendition thereof. The authorities cited by the defendants’ counsel are abundantly sufficient to show the validity of such a provision, and the power and duty of courts to enforce it. "We are, therefore, of opinion that the execution in this case must be stayed for three months after the rendition of judgment, in accordance with the express requirements of the defendants’ charter.

Qur first impression was, that a judgment, having long since been rendered in Maine, the design and purpose of the special provision had already been attained by the delay occurring between the rendition of judgment there, and the rendition of judgment here resting upon the former judgment, but reflection satisfies us that this impression was erroneous. The evident purpose of the provision was to give opportunity for the defendant corporation, by assessments on their premium notes, and otherwise, to raise funds wherewith to adjust and satisfy any judgment against them, before an execution, should issue, to be levied upon the property of the company. Now, upon a foreign judgment, no execution could issue which could be levied upon the property of the corpoi’ation in this State, where the company is located, and where its property and funds must necessarily be chiefly found. Hence there is substantially the same reason for the company’s having three months in which to collect funds wherewith to meet the liabilities resulting from a judgment here, founded upon a foreign judgment, before execution shall issue, as would have existed if the judgment here were rendered upon the original cause of action, as it existed in the policy of insurance between the parties. Until the rendition of judgment here, the property of the corporation was in no» danger from a levy, and the company were exposed to no risk of sacrifice and loss from the peremptory sale of their goods and chattels upon exe©ution. The present is the first occasion when they have needed the protection contemplated in the special provision of their charter, and we are clearly satisfied that they are entitled to receive it.

So, too, in regard to the motion to limit the operation of the execution that may be issued to the funds and property, the goods, chattels or lands of the defendant corporation, belonging to the fourth, or manufacturers’ class of said company. It is manifestly apparent, from an examination of the whole tenor of the charter and bylaws of the defendant corporation, which were expressly made part and parcel of the contract between the parties, that the plaintiff, in becoming a member of the defendant company by obtaining insurance in its fourth, or manufacturers’ class, acquired no moi'e claim to the funds and property of the other three classes, nor any greater right to contribution from the members of those classes, to satisfy any loss that he might incur by the destruction by fire of the property insured to him, than to the funds and property of any other independent and distinct insurance company, or from the members of such other independent and distinct company. The defendant corporation is, in truth and in substance, four distinct and independent insurance companies, under the management and control of a single board of directors, elected by the individual members of each of those distinct companies, and for convenience transacting business under one general name. But the premium notes of each class of risks, which alone constitute the capital stock of the company, available for the payment of losses and other liabilities, are expressly made liable to be assessed to pay the losses occurring in their respective classes only, and not each for the other. The plaintiff, then, in accepting his policy, bound and obliged himself to limit his claim of payment for the loss or damage by fire of his property insured, to the funds and property of the manufacturers’ class alone, and we can perceive no reason why, in accordance with the motion of the defendants, the execution, which may issue upon Ids judgment, should not be restricted to run only against the funds and property of the defendant corporation belonging to that class.

The authorities referred to in the defendants’ brief seem to us conclusive upon the power of the court to limit the operation of the execution as indicated.

Nor can it be urged that the defendants, by omitting to move for such limitation of the execution, if one issued upon the judgment in Maine, have thereby waived the right to insist upon its application here. As before observed, no execution which may have issued in Maine could be levied upon the property of the corporation in this State, and hence it would have been entirely useless for the company to have asked for a limitation of the exetion, if any issued thei’e. Besides, it is a matter vital to the interests of all the persons insured in the various classes of the company, that the funds and property of each class should be levied upon to satisfy the judgments obtained for losses in that particular class only. The provisions of the charter are of public concern and of public consideration, and no mere neglect of the defendants could, therefore, be construed to waive them. Hanover v. Weare, 2 N. H. 131, and authorities cited on page 133.

On the whole, therefore, we have no hesitation in holding that the motion of the defendant, in both its branches, should be granted; that the execution should be stayed for three months, and that when it issues it should run only against the goods, chattels and funds, the property and funds of the defendant corporation belonging to its fourth, or manufacturers’ class.

Motion granted*