69 So. 527 | Ala. | 1915
In this case the defendant demurred to the amended complaint. The demurrers were sustained, and, plaintiff declining to plead further, judgment was rendered for defendant. The questions presented are: (1) Does the complaint show that the power of attorney to Wallace Pratt, Jr., was executed by appellee? (2) Does it appear that the execution of such power was ultra vires? And (3) do the facts alleged show that appellee was liable under policy No. 1278 of the Lumbermen’s Inter-Insurance Association, on which the suit is brought?
The real question presented is whether the purpose shown by the power of attorney and 'by the contract of insurance sued on, is within the corporate poAver of the several members of the association, including the
It is well settled by many authorities that an obligation rests upon persons and corporations obtaining the money or property of others without authority of law or independent of any statute to do justice by the opposite party; that it is a duty to restore the property, or, if it has been used, to render an equivalent therefor. — Allen v. LaFayette, 89 Ala. 641, 8 South. 30, 9 L. R. A. 497; Marsh v. Fulton, 10 Wall. 676, 19 L. Ed. 1040; Louisiana v. Wood, 102 U. S. 204, 26 L. Ed. 153; Pimental v. San Francisco, 21 Cal. 352; Clark v. Co. Com'rs, 9 Neb. 516, 4 N. W. 246; Paul v. City, 22 Wis. 266, 94 Am. Dec. 598; Bridge v. Frankfort, 18 B. Mon.
See Gen. Elec. Co. v. Town of Ft. Deposit, supra.
This rule was reaffirmed by Mr. Justice Anderson in Ellis v. Batson, 177 Ala. 313, 317, 58 South. 193. See, also, Gunter v. Leckey, 30 Ala. 591. In the last-mentioned case Chief Justice Rice said: “If he is unable to establish his claim, *' * * without relying upon such illegal sale, or if he requires any aid from it to establish his case, he cannot recover in a court of law.”
This rule he supports by the earlier case of McGehee v. Lindsay, 6 Ala. 16, 22, and Harris v. Runnels, 12 How. 79, 13 L. Ed. 901.
It will not be held that, because the one clause of the contract authorizing confession of judgment before suit was void, the whole contract was void. The questioned clause referred only to a summary remedy for collection in event of loss by fire. It was not an exclusive remedy. The courts of the several states where the members of the Lumbermen’s Inter-Insurance Association were incorporated or domiciled were open for an appropriate proceeding on the policy of insurance. The void clause did not affect this remedy by suit. It could not authorize a confession of judgment against an Alabama corporation.
This provision of the statute does not apply to policies between individuals or members of an association. It does not even declare void a policy with any insurance company. Its object was the collection of a revenue of “one 'per cent, on the gross premiums paid, on the insurance as paid.” The violation of the insurance statutes, intended to protect 'the citizen, does not render policies void, unless the statute so provided.— Meridian Life Insurance Co. v. Dean, 182 Ala. 127, 62 South. 90.
In Sunflower Lumber Co. v. T. Supply Co., 158 Ala. 191, 48 South. 510, 132 Am. St. Rep. 20, Mr. Justice Anderson, quoting from Clark on Contracts, 385, and the opinion of Baron Parke in Smith v. Mawhood, 14 Mees. & W. 452, declared the rule to be that if the statute was not to prohibit a contract, but merely to provide for collection of the revenue, the agreement is not void if no specific penalty is imposed, but that, if the conditions are made for the benefit of the public, agreements that do not comply with the statuory conditions are void. How .could it be said that the public was benefited or injured by the writing of such mutual insurance? As Baron Parke said, “if the object of the legislation was not to prohibit a contract of sale by dealers who have not- taken out a license pursuant to' the
For-the error of the trial court in sustaining defend-ant’s demurrers, the judgment is reversed, and the cause - is remanded.
Reversed and remanded.