By the Court,
This аction was founded upon a premium note in the words and figures following, viz: “$400. For value received in policy No. 423, dated the 10th day of October, 1851, issued by the Columbian Insurance Company, I promise to рay the said company the sum of four hundred dollars, in such portions and at such time or times as the dirеctors may, agreeably to their charter and by-laws, require. (Signed) Henby Hill.”
The most important question in thе case is whether the plaintiff gave sufficient evidence of losses by the company to justify him in making the assessment by which the defendant was required to pay the full amount unpaid upon his note.
There was no necessity for the receiver to prove all the facts upon which he or the сompany allowed the losses for which the assessment was made. All he was required to show was that sufficient claims for losses had been presented to the company, or to him, which he allowed, to make up the sum for which he assessed" the notes. It has been held that the record of losses, kept by a mutual insurance company, is sufficient prima facie evidence that such losses have occurred, in an action to recover an assessment laid upon the members. (People’s Mutual Ins. Co. v. Allen et al. 10 Gray’s Mass. Rep. 297.) The company, or where insolvent, its receiver, acts for the members, in receiving and allowing claims for losses; and the determinations of the company, or its receiver, in allowing such claims are prima facie binding upon the members.
I think it is in the power of the company, or its receiver, to allow equitable claims for losses though no aсtions to
Whether the directors or the receiver would bе liable over to the note makers for allowing equitable claims for losses, which they might have аvoided or defeated on merely technical grounds need not be determined, and I will not express any opinion upon the question. I will only say, if the note makers have any remedy for the. allowance of such claims, it must be against the directors or receiver personally.
It seems tо me the plaintiff gave sufficient evidence to establish prima facie that the company owed debts enоugh to justify the assessment in question.
It was competent for the defendant to show that the alleged lоsses were fictitious, or that they were fraudulently allowed. But he did not prove or offer to prove such a fact. His position was that the company, or its receiver, might have avoided paying the losses by contesting them on • the ground that actions to recover them have not beеn brought within the time prescribed by the charter or by-laws of the company, or that limited by statute. And, as has been seen, he could not defend the action on that ground.
The promise of an agent оf the company that the company would surrender the defendant’s note in consideration оf the payment by the defendant of $132, and the surrender by him of his policy, was without consideration and vоid. The $132 was due from the defendant, for a valid assess
The defendant was not in a position to object to the regularity of the incorporation or formation of the company. He was a member of it until it was declared insolvent and dissolved, and had contractеd with it as a valid corporation. The rule is that a defendant who has contracted with a corporation de facto is never permitted to allege any defect in its organization, as affecting its сapacity to contract or sue; but that all such objections, if valid, are only availablе on behalf of the sovereign power of the state. (See Palmer v. Lawrence, 3 Sandf. S. C. Rep. 170; White v. Coventry, 29 Barb. 305; Hyatt v. Esmond, 37 id. 601; Cooper v. Shaver, 41 id. 151; White v. Ross, 15 Ab. Pr. Rep. 66.)
There is no other question in the case that need be noticed.
My conclusion is that the judgment in the action should be affirmed, with costs.
Decision accordingly.
Parker, Mason and Palcom, Justices.]