30 Mo. 46 | Mo. | 1860
delivered the opinion of the court.
This was an action on a policy of insurance. The respondents were doing business in the city of Weston, Mo., in the firm name of Wallingford & Newman. The appellant was a Mutual Insurance Company, holding a charter from this state, and located and doing business in St. Louis.
By the eighth section of the charter it is declared that every person becoming a member of the company by effecting insurance therein shall, before he receives his policy, deposit his promissory note for such sum as shall be determined by the directors; apart, not exceeding ten percent., of said note shall be immediately paid for the purpose of discharging incidental expenses, &c.; another provision of the charter provides that insurance shall be made on the written application of the assured. The by-laws make it the duty of the president, alone or jointly with any director, to examine all applications for insurance, fix the sum or sums to be taken on each, and the rates of insurance, and approve the same by endorsement on the back of the application; also that “ policies of insurance shall take effect at 12 o’clock, noon, on the day of approval at the office of the company, and shall be binding thereafter, provided the premium or ten per centage on the premium note has been paid” Sec. 8, article 4 of the by-laws further declares that ten per cent, of the premium note shall be paid in all cases and endorsed thereon; one dollar shall be paid to the secretary for each policy, and fifty cents for every assignment or transfer, and one dollar shall be allowed agents for each application taken by them, provided the same is affirmed; and the charter, amendment, by-laws, and conditions of insurance, annexed to the policy, and the application for insurance, are all by express terms made a part of the policy — all which, together with the policy and premium note, were read in evidence on the trial. Be
Salisbury, the secretary of the company, exhibits and reads a copy of a letter written by him to Bird, dated January 20, 1855, enclosing policy and giving statement of sum due on it at fifteen per cent., and directing that if the respondents should think the rate too high, he could return the policy without charge. The application was received by the company from their agent (Bird) January 3, 1855. He also states that no premium was ever paid to the office; that the only authority that Bird had for delivering said policy to respondents was the letter alluded to. These are the material facts in the case.
The question we propose to consider in reference to the instructions given and refused is whether, under the state of facts proved, there was any acceptance of the terms of insurance on the part of the respondents ; in other words, whether there was a mutual assent of the parties or union of minds to the terms, so as to complete a contract of insurance. Was the acceptance of the policy, the giving of the premium note, and the payment of ten per cent., any or all these, prerequisite to its consummation ? It is not pretended that the agent had any authority to make a contract of insurance, to agree upon the rate of premium, or to take risks. No question can arise as to the extent of his power as the company’s agent; it was confined to that of receiving applications and
There was here no assent or union of minds to the terms proposed, but one proposition made which was not accepted, and another and different one submitted by the company, which was not accepted nor even known to have been made before the fire. The case would not have been different if no rate had been specified in the application, (and it was the same thing in effect, for Bird had no authority to agree upon it,) and it had been forwarded to the company. It could scarcely be maintained in such case that the company would have been bound before the terms had been submitted to and accepted by the respondents. Here is an application for insurance, and terms are proposed by the company, which the respondents were at liberty to accept or reject at their option. But it was never acted upon before the loss, and could not have been, because they were not informed of it. It does not appear that the company knew, before the fire occurred, ■that the respondents proposed to hold themselves bound by any rate .of insurance that it might fix; and even if Bird had knowledge of this, the company would not be bound by it.
Although the policy may have reached Bird and been in his possession before the loss happened, it was the same thing as if it had remained in the possession of the company, for
But there is another reason why this policy never toot effect, which is that the ten per cent, on the premium note had not been paid. We have seen that the charter declares that the applicant for insurance “ shall, before he receives his policy, deposit his promissory note, &c., a part, not exceeding ten per cent, of which, shall be immediately paid.” The by-laws provide that “ policies shall take effect at 12 o’clock, noon, on the day of approval at the office of the company, and shall be binding thereafter, provided the premium or the ten per cent, tax on the premium note has been paid,” and “ that ten per cent, of the premium note shall be paid in all cases and endorsed on the policy.” The evident meaning of this clause of the charter is that the giving of the note and paying the prescribed per cent, are conditions precedent to the taking effect of the policy, and it is so interpreted and carried out in the by-laws which have been quoted; and any by-law which had not exacted these terms would have been inconsistent with and unauthorized by the charter. The policy, it is true, was approved on 20th of January, and would have been binding from noon of that day if the contract of insurance had been perfected and the money paid; but having been approved without the assent of the respondents to its terms and the payment of the required sum, the policy was incomplete as a contract of insurance, and remained so by reason of the non-assent of the respondents.
Mr. Phillips, in his work on Insurance, says the execution of a contract of insurance is not distinguishable from that of other written instruments ; that though a policy is a contract between two parties, each of whom is under certain obligations and entitled to demand of the other a compliance with certain implied and expressed conditions and stipula
In contracting with such a body it is necessary not only to see that the contract is one within its authority to make and that the person acting as the agent of the company is authorized to bind it, but also that the contract is in the form by which the company, according to its constitution, may be bound. (1 Phillips, § 11.)
A number of cases have been cited by the respondents’ counsel, all of which, we think, are distinguishable from the case before us. In Blanchard et al. v. Waite, 28 Maine, 51, the suit was assumpsit on a contract of insurance against a member of a voluntary association of underwriters, for whom the secretary was authorized by a general power of attorney to use the names of all the associates in signing policies of insurance. One of the plaintiffs applied to the president for an insurance on a vessel, of which they (plaintiffs) were sole owners, who, after consultation with the director for the week, agreed to take the risk, and the plaintiff applying
In Taylor v. Merchants’ Insurance Company, 9 How. 391, one question was whether, (where there was a correspondence relating to insurance of a house against fire,) the company having made known the terms upon which they were willing to insure, the contract was complete when the insured placed a letter in the post-office accepting the terms. In the instructions of the company to their agent at a distant place, he was advised to transmit all applications for insurance to the office for consideration, and that upon receipt of an answer, if the applicant accepts the terms, the contract is considered complete without waiting to communicate acceptance to the company; and the policy to be thereafter issued is to bear date from time of the acceptance. The court held that in accordance with the usage of the companies, as well as upon general principles of law governing contracts entered into by absent parties, the contract was complete when the assured placed a letter in the post-office accepting the terms. The claim was also resisted by reason of the nonpayment of the premium note, the actual payment of which, according to the condition annexed to the policy, was necessary to make the insurance binding. The agent was instructed to give no
In the case in 20 Ohio, 527, cited by counsel, the contract of insurance was made with an agent who, it appears, was fully authorized to make a valid contract without the ratification of the company. The case in 4 Cowen, 145, involved the question of the authority or powers of the agent to bind the company in the given case, and is unlike the case at bar in its leading facts. The remaining cases cited, we think, are also inapplicable.
In the view we have taken of the case, we are of opinion that the instructions given at the instance of the respondents, and by the court on its own motion, were erroneous, and that those asked by the appellant should have been given.
We see no error in excluding or admitting evidence. Judgment reversed; the other judges concurring.