8 R.I. 25 | R.I. | 1864
The main questions raised by this record are questions of evidence, merely. To say, in a suit by a mutual insurance company against one of its members, the company being a corporation defacto, at least, whose corporate existence is acknowledged by the action and contract of the defendant, and which is permitted to act as a corporation by the legislature whose charter it affects to wield, that the due organization and right of the company to act under its charter, is, in the absence of proof to the contrary, to be presumed, is far within the line both of principle and precedent; and the only question has been, whether the defendant is not estopped to deny it, thus incidentally, for the purpose of avoiding an obligation into which he has deliberately entered, and upon the faith of which others have become co-insurer and co-insured with him. If, upon such a ground, he could avoid payment of his assessments, — the fund to which those members who have sustained losses by fire must look for their indemnity, — it would be very much like permitting him to practise a fraud upon them. It would be very difficult to contravene, upon principle, the decision of the Supreme Court of Massachusetts, in Appleton Mutual Fire Insurance Co. v.Jesser, 5 Allen, 446, that the lawfulness of the organization of a corporation de facto, for mutual insurance, cannot be impeached, collaterally, in an action to recover an assessment. At least, the learned judge, who tried this case below, did not err in holding, that, in the absence of proof to the contrary, it was to be presumed, that the plaintiffs had done all those things under their charter, which were required to enable them to act as a corporation for mutual insurance, and that the fact that the minute book of the corporate proceedings did not affirmatively show that these requisites had been complied with, did not control *34 this presumption. The fact that this book did not contain evidence that, before the issuing of any policy, the sum of $1,000,000 had been subscribed to be insured, did not even tend to prove that such subscription had not been made. It is not the place in which we should expect to find such a subscription; and was properly excluded as proving by what was not in it, that no such subscription had been made. The subscription probably preceded the organization, as the basis upon which the corporation was entitled to insure.
Another exception presented to us is, that the judge who tried this cause did not, though requested, instruct the jury, that, because, of four policies issued by the plaintiffs during the period in which the defendant effected his policies with them, two bore endorsed a written agreement signed by the secretary of the company, and two signed by the brokers who procured them, that the holders of those policies were not to be liable to assessment, the assessments upon the defendant's policies were void. When the bill of exceptions finds that these agreements were wholly unauthorized by the board of directors and were repudiated by them; that the policy holders were assessed, notwithstanding the agreements, and paid their assessments, as others, and that the assessments sought of the defendant were not all affected in amount by this irregular conduct on the part of the secretary and of the brokers, it would be difficult to find a reason why the agreements should release the defendant from an obligation expressly assumed by him, unless upon the logic that a wrong attempted and repented of by one, sanctions a similar wrong persisted in by another.
The remaining exceptions turn upon the 23d article of the by-laws of this mutual insurance company, which is alleged to be illegal and oppressive, and, as construed in practice, unequal and unjust. Whatever may be the merits of ten per cent. per month upon unpaid assessments, as a means of inducing their prompt payment, the 8th section of the charter,* which *35 gives to the company an action to recover them, if they shall remain unpaid thirty days after demand, prescribes, as we read it, that their amount is to be recovered in such action, — which, of course, includes simple interest. The by-law, cannot, in this particular, add to the rule of damages thus fixed by the charter; and we shall do entire justice to both parties, by allowing the verdict to stand, on condition that the plaintiffs release, upon the record, the excess of the verdict over the proper amount of the same, thus ascertained. This will take away from the defendant all cause of complaint, since it will place him upon the footing of those most favored by the company in the exercise of the discretion that they seem to have assumed, as to the enforcement of the penalty of this by-law. Upon the above release, let judgment below be affirmed, and the clerk issue execution for the balance thereof, with costs.
