22 Conn. 133 | Conn. | 1852
The plaintiffs’ charter makes them, in fact, as well as in name, a Mutual Benefit Life Insurance Company. This is the fundamental principle of their organization. It is implied in their name, and is more fully expressed, in the body of the charter, which gives them power to insure the respective lives of their members, and denies them the power to insure any others, by providing that all persons, who shall, at any time, insure in or with said association, shall, while they continue so insured, be deemed and taken as members of the corporation; and provides for an equal assessment upon all the members, in proportion to each member’s insurance, to pay for losses, which the company may not have funds on hand to discharge.
The sixth section of the charter authorizes the company
On the trial of the cause, a question arose, whether certain declarations, made by the agent of the plaintiffs, previous to, and at the time when the policy of insurance was issued, and the original note was given, were admissible in evidence. It does not appear, from the finding, for what precise purpose those declarations were offered. It is clear, however, that if they were offered, for the purpose of explaining, or in any way altering the terms of the contract, as evidenced by the note, and by the policy and the charter and the regulations of the company, they were not admissible, for any such purpose; but, so far as they went to show, that the note, though not so expressed upon its face, was a mere premium note, such as the company is authorized to take, under the sixth section of the charter, and that it was delivered as such, and therefore liable to all the incidents, and subject’ to all the conditions which the charter annexes to notes of that description, we think the evidence was admissible for this purpose. In this aspect, it went merely to give effect to the note, as an authentic instrument, under the plaintiffs’ charter. It is true, that the operations qualify the absolute terms of the note, and annex conditions and limitations to it; but, this operation is hot the effect of the parol evidence, but of the plaintiffs’ charter; the evidence merely applies the instrument to its proper subject matter. The charter gives the plaintiffs no power to take premium notes or obligations for any other purpose, than as a security for losses ; and when it is shown, that this was a premium note, these incidents are at once annexed to it; and unless effect is given to it, in this way, it becomes a note, given without consideration.
We therefore advise the superior court, to render judgment for the defendants.
My reflections upon this case have brought me to a different conclusion, from that expressed by my brethren.
Mr. Jarvis, the defendant, applied to the plaintiffs, for an insurance upon his life for $5000, from the 7th of October, 1847. From Carlisle’s tables, (which were used by the company, to ascertain the proper annual premium, to be paid by the defendant,) it appears, and it was agreed, it should be the sum of $245; one-quarter of this, the defendant paid at the time, and gave his note for the remaining three-quarters, payable at the end of the year “without default or discount,” with interest.. If, at the end of the year, he chose to continue a member of the company, by further insuring, he could, at his request, renew the insurance for another year, by paying twenty-five per cent of the premium for another year, and giving a new note, for the amount of the former note, and interest, and the three-quarters of another $245, the premium for the second year; so that the note, now in suit, consists of premium, and interest for two years’ insurance. This premium note fell due, on the 7th of October, 1849, that being the date up to which he had been insured, and after which he did not ask for further insurance. It will thus be seen, that the company had insured the defendant’s life for two years, at the stipulated premium, and how the defendant is to get rid of the payment of this earned money, by his own act simply, I have not been able to discover. The money being earned, can be recovered on the common counts, as well as on the special count.
By the terms of the charter, in the sixth section, the company declare, “that it shall and may be lawful, for the officers of said corporation, to take the notes or obligations of the members, for the amount, either in part or in whole, of the premium of insurance, in proportion to the amount
It is said, however, that the note is not absolute, and is not to be paid, as is written, without defalcation; but is to be paid only upon future assessments. Here, I think, is the great mistake of the defendant’s counsel. The defendant, by separating himself from the company, has deprived himself of the privilege contemplated by this provision of the by-law, so that the by-law is not at all applicable to the case of the defendant. The provision is intended for his benefit, while he remains a member; but he has forfeited that privilege, by his separation. When he ceased to be a member, he ceased to be a subject of assessment, both by the charter and the by-laws; for none but members can be assessed. Were it indeed practicable, to assess those who had been members, for what losses could this be done ? those that accrued during membership, or those which may accrue at any future period, upon policies issued during the time of membership 1
It must be conceded, that if the defendant is not liable, in the present suit, he is not liable at all, and yet he has been insured for the agreed premium of $490, by paying only $122.50. In the same by-law, to which the defendant refers,
It must be further remembered, that these notes, given for earned premiums, constitute the fund of the company, to which the public look for the payment of losses, but they now discover, that these notes mean nothing, and secure nothing. The consequence too, is, that a person may remain a member of the company, and be insured for any time, twenty or fifty years, until his premium note shall amount to thousands of dollars, and then retire from the company, repudiate his note, and if dishonest enough, pursue* the same course with another company.
Something has been said, about the want of mutuality, and of consideration; but no question of this kind can arise ; for the defendant’s life was insured, for two years, at the price agreed, and that surely is mutuality and consideration enough; and I insist, that the defence is nothing but a barefaced attempt to avoid the payment of a clear note of hand. The defendant was fairly and fully insured; and had he died within the two years, his representatives would have been entitled to the five thousand dollars ; and yet he asserts, that though he was so insured, he will not fulfill the contract, as he made it. He will neither renew nor pay his note, nor remain in a condition to be assessed; and, in this defence he has succeeded, as I think, by the prostration of the plainest principles of equity and justice.
Judgment for defendant.