Atlantic Mutual Fire Insurance v. Sanders

36 N.H. 252

Opinion

Bell, J.

It is objected that the first count is not supported by the evidence. The note declared on is alleged to he dated June 20,1850, but the note produced has no date. A copy of the note is given. It begins, For value received, in policy ISTo. 8474, dated the 20th day of June, 1858. It has no date, unless this reference to the date of the policy can be so considered, for which there seems to be no pretence. “ In all actions on bills of exchange, promissory notes, or other written instruments, not under seal, the date being a material part of the instrument, must he stated, as it appears on the face of the instrument. The slightest variance will be fatal.” Arch. Cri. PI. 115, 363; Lawes’ Asst. 92; 1 Ch. Pl. 258 ; Mathews v. Spirer, 2 Stra. 806; Gould’s Pl. 90; Bayley on Bills 304; 1 Saund. Pl. & Ev. 260; 1 Greenl. Ev. sec. 61. This defect is ground of nonsuit. Arch. Cri. PI. 115, 545.

II. It is objected to the second count, that it does not state any time when the promise was made. But this is a defect which can be taken advantage of on demurrer only. Arch. Civ. PI. 115, 541; 1 Tidd’s Pr. 649; Yel. 94, note 1.

If a day was stated, without describing the note as dated on that day, it would not be material. Arch. Civ. PI. 115 ; 1 Saund. PL & Ev. 260 ; Coxon v. Lyon, 2 Camp. 307, n. If the count want time, place, or other circumstances, it may be aided by the defendants’bar. 8 Co. 120, b.; Doct. PI. 279 ; Arch. Civ. PI. 178 ; Com. Dig., Pleader, C, 85 ; or by the verdict; 1 Saund. 228, a.; Arch. PI. 178 ; Gould’s Pl. 499; Blackwell v. Eales, 5 Mod. 286 ; Com. Dig., Pleader, C, 19, 87.

This defect is no ground of nonsuit.

2. It is not perceived that there is any foundation in fact for the second objection. The note is stated almost literally, and its legal operation is properly stated. It is not seen how the note or its consideration could be better stated.

8. The day upon which the directors make the assessment was not material.

The precise time [when any material or traversable fact happened,] is not material, unless it constitutes a material part of the contract declared on ; or where the date of a written contract or record is averred. 1 Ch. PI. 258 ; Arch. Civ. PI. 115; Gould’s PI. 88; Co. Litt. 288, a; Greenl. Ev. 69, sec. 61; Lawes’ Asst. 92.

4. The same rule applies to the time of payment.

5. It is objected that the breach of the contract is not well laid, the note being, “ to pay as the directors of said company may, agreeably to their act of incorporation and by-laws, require while the allegation is that the defendants “ required said defendants to pay.”

“ The breach must obviously be governed by the nature of the stipulation. It should be assigned in the words of the contract, either negatively or affirmatively, or in words which are coextensive -with the import or effect of it.” 1 Oh. PL 326 ; Com. Dig., Pleader, 0, 45, 47 ; Ibid. 2, V., 2 ; 2 Saund. 181, 186, n. 10.

“ But if a breach assigned be not in the words of the covenant, but shorter or larger than the covenant, it is bad.” Com. Dig., Pleader, 0, 47; Dawes’ PI. in Asst. 275.

But this defect is to be taken advantage of by demurrer, &c. Dawes’ Asst. 258, 282; Charnley v. Winstanley, 5 East 266 ; and not by a nonsuit.

6. It is said the act of incorporation, being a private statute, cannot be proved, because it is not set out or referred to in the count. But we are not aware of any ground on which this point can be sustained. There is no general principle which forbids the proof of a private statute, where it is not pleaded. And it is not seen why, if in this case the breach had been laid, that the directors, agreeably to their act of incorporation and by-laws, did require the defendant to pay, they might not prove their act and by-laws, and an assessment in conformity to them.

It does not seem it can be necessary to set out the provisions of the charter and by-laws before any evidence can be necessary to prove them.

An assessment, which was not in conformity to the charter and by-laws, would be merely ineffectual.

7. There is no evidence, it is said, of the by-laws. A policy was produced, to which certain printed by-laws are attached, and they are referred to by the policy and made part of it. We do not understand that any question is made, that if a policy is shown to have issued to the defendant, with by-laws attached, and referred to, corresponding in date, &c., to the note, the same evidence which proved the policy would not sufficiently prove the by-laws. The objection is, rather, that the note refers to a policy dated June 20. The policy produced is dated May 23, and it is alleged that there is no sufficient evidence that the defendant received the policy now produced.

The evidence as reported is not very satisfactory. An application for insurance, agreeing in number, amount and description of property, with the policy produced, and in number with the policy, as described in the note, is produced ; but nothing is said of the date of it. The secretary testifies that the note was dated June 20, but he says nothing of the date of the application, or of the time when the policy issued. The error, if it is one, in the date of the policy, as stated in the note, is not conclusive against the admissibility of the policy produced. Effect is to be given to all. the words of description of any person or object referred to in any writing or contract, if it can be done ; but if that is not practicable, and the person or thing intended can be ascertained from such part of the description as is found to be correct, effect will be given to that part of the description, and the residue will be rejected as erroneous. Here the policy referred to may be regarded as sufficiently identified by the number; and the fact that it is a policy issued by this company, to these defendants, and there being no suggestion that any other had been issued to them, it was competent, then, for the jury to find, if the evidence satisfied them of the fact, that the policy produced is that referred to in the note, and to reject the date as a mistake in the description. Emerson v. White, 29 N. H. (9 Foster) 482.

The evidence of the secretary that the application was taken by Ricker, sent to the office by mail, and the policy sent to him, and that the policy was subsequently returned to the office, upon a notice to holders of policies to return them, had a tendency, in the absence of any complaint .or inquiry by the defendants, or denial, when payment was demanded, to show that the policy had been received by them. If it was so received, it would be evidence of the by-laws attached to it, and it must be for the jury to judge whether this evidence warranted the belief that the policy had been received, and was returned by the defendants.

8. It is said no evidence was admissible to prove the by-laws, because they were not set out or referred to in the count. This objection does not seem well founded, in fact, since the by-laws are distinctly referred to in the count, in stating the contract. But if it were not so, it was not necessary to allege the by-laws in the declaration, in order to make proof of them admissible. It might be entirely sufficient, to render such proof proper, to refer to them in the breach as is done in the note, alleging that the directors, agreeably to their act of incorporation and by-laws, did require payment, &c. But whether any, and if any, what allegation in this respect was required to Show a good ground of action, is a matter to be determined by a demurrer, and not on a motion for a nonsuit. Whether the breach was properly alleged or not, it seems clear that the plaintiffs might show their charter and by-laws, to prove their assessments regular.

9. The general principle as to notice before suit is thus laid down in Lawes on Asst. 210: “ If the defendant’s performance is to depend upon any act to be done by the plaintiff, and which lies merely within his own knowledge, notice of his doing such act ought to be expressly averred. So, where the promise depends upon the performance of an action by a stranger, and the particular person is uncertain, or unknown. But whether notice was necessary to be alleged in a particular case, cannot be determined upon a motion for a nonsuit, or new trial.”

10,11“ It is said the notice published is insufficient, in not giving the information required by the charter and by-laws. It was published before the assessment was made. As the declaration is sustained upon the ground that it must be presumed that this fact was proved, or no verdict would have been rendered in favor of the plaintiff, it becomes necessary to examine the requirements of the charter and by-laws, and to see how far the evidence offered shows them to have been substantially complied with. By the note, the payments are to be made “ as the directors may require, according to their act of incorporation and by-laws.” By the second article of the charter, “ All property, whether real or personal, insured by said company, shall be divided into four separate and distinct classes, and each class shall be liable for its own losses. The premium notes of each class of risks shall be holden and assessed to pay the losses occurring in their respective classes, and not each for the other; and the policy of each member of the company shall designate with which class of risks he is associated. The company shall open books of account with each class of risks, and all the business, receipts, disbursements, losses, assessments, and expenses, shall be put to the several classes to which they are applicable ; and the general expenses of the company, which are not strictly applicable to either class, shall he apportioned to the several classes, according to the amount insured by each.”

By the 9th article, “ All assessments shall be determined by the directors ; and the sums to be paid by each member shall always be in proportion to the amount of his deposit note of the class in which his property is embraced, and shall be paid to the treasurer within thirty days next after notice of said assessment shall have been published.”

By article 4 of the by-laws, “ Notice of assessments, designating the class or classes of property assessed, shall be given by the treasurer, and published in one or more newspapers printed in the county of Rockingham, three weeks successively, the last publication of which shall not be less than six days prior to the time fixed for the payment, and may be published in such other newspaper or newspapers as. the directors may deem necessary or expedient.” And by article 13, of the by-laws, “ Every person insured shall be liable for his proportion of all losses and expenses of the class to which he belongs of the company, until he cause his _ policy to be discharged, and such proportion of losses and expenses paid ; notwithstanding he may by some act or neglect have rendered his policy void as against the company.”

It is to these provisions that we understand the terms of the note in question to refer, where it is said, “We promise to pay to said company, or their treasurer, fifteen dollars, in such portions and at such times as the directors, agreeably to their act of incorporation and by-laws, may require ;” and its language may be regarded as equivalent to saying, in such assessments as the directors, agreeably to their charter and by-laws, may make. The sums assessed by the directors, are the sums they require to be paid, and the times when assessments are required by the charter and by-laws to be paid, are the times the directors require payments on notes to be made. If the assessments are duly made, according to the act of incorporation and by-laws, this is all the requirement necessary to be made for the payment of the note.

What, then, is necessary to- make a valid assessment ? or, in Qther words, to designate the portion of the premium note required to be paid, and the time of payment ?

The directors must determine the assessment. Nothing more is to be done by them. The ride by which the assessment is to be made is fixed by the charter itself, leaving no discretion to be exercised by the directors, or by any body else. The losses and expenses occurring in each class, with a proportionate amount of the expenses not specially chargeable to either class, are to be assessed upon every person insured in the class, in proportion to the original amount of his premium note. This is all matter of mere arithmetical computation, which can be done by any competent person, and requires no action of the directors.

An assessment, with reference to this question, has no resemblance to the assessment of a public tax. Such assessment implies the exercise of the judgment of the assessors, as to the persons to be assessed and the value of the estate to be taxed, as well as the computation of the amount each is to pay. It has nothing to do with the decision of the question whether a tax shall be laid ; while the assessment, or the determination of the assessment, which is the only duty of the directors, is much more analogous to the vote of the town for raising a tax.

The note in question is payable at such time or times as the directors may require, agreeably to their act of incorporation and by-laws. The charter, article 9, declares that “ all assessments shall be paid to the treasurer within thirty days next after notice of said assessment shall have been published.” The time, then, within which such assessments shall be paid, is not a matter within the discretion of the directors, further than that they are to determine at what time assessments shall be made. Their act of incorporation, then, determines at what time after that the payments are to be made. The publication of notice is not by the by-laws any part of the duty of the directors, since they, in express terms, impose that duty upon the treasurer. Article 4 provides that “ notice of assessments, designating the class or classes of property assessed, shall be given by the treas-mrer the directors having no other duty in the matter than to direct, if they think it expedient, that notice should be given in other newspapers than that selected by the treasurer.

The notice shown in the case seems an exact and literal compliance with the by-law, before recited. It is a notice of the assessment, and it designates the class, and whatever may be our opinion as to the expediency in such associations of giving more full and definite notice of such assessments, the by-law requires no more than was done.

From the nature of the case it seems that notice of the sum to be paid on each premium note could not be intended, since the number of policies issued by some of these companies amounts to thousands, and no newspaper in some such cases could contain the notice. Some brief notice of the assessment must be intended. In practice, as we understand, a notice, stating the percentage to be paid on notes of certain dates, has been usually published, and we have never heard of any objection to such a notice. But an advertisement of that sort does not give notice to any individual of the amount he is to pay, unless he knows the date of his premium note, which is, as we infer from the notice at the foot of the note here in suit, not inserted at the making of the note, but is inserted, if it is dated at all, by the secretary. Full notice of the amount to be paid is not, then, required to be given in the published notice ; and it is shown that the defendants had actual notice of the precise amount claimed, and of the losses and expenses which gave rise to the assessment. So far as notice is required by the general rules of pleading, this evidence was all that could be required.

12. It is objected that the count is brought to recover an assessment. The action, it is said'by the charter, should be for the whole note.

The provision of the charter referred to, the 9th section, provides that “ if any member shall, for the space of thirty days after notice, neglect to pay the sum assessed upon his note, &c., the directors may sue for and recover the whole amount of said deposit note, with costs of suit.” This clause does not require a suit for the whole ; it allows it, if the directors so choose.

13. It is said there is no allegation that there were any losses or expenses in the third class, or that the assessment was made to pay the defendants’ proportion of losses and expenses, and no evidence of the amount of notes assessed. As we have before remarked, the want of these allegations is a defect of the declaration, at most, of which the defendants must take advantage by a demurrer; it is no ground of nonsuit. It was distinctly admitted that the losses and expenses enumerated on the receipt, offered to the defendants, were losses and expenses in this class.

The records and votes of the corporation, and of the directors, were competent evidence of the proceedings of the board. The directors, by the terms of the note, were the board to determine the assessment, and their vote, determining the rate of assessment upon notes of different dates, must be primé fade evidence of a regular assessment.

14. There is no evidence, it is said, of a regular meeting of the directors. It appeared that for six years the stated meetings had been holden every Monday, as the secretary believed, in pursuance of an old vote, not produced. It was wholly immaterial in what way the day of the regular meetings was fixed. If it had been fixed by usage, a tacit understanding of the members, or in any other way, it was enough. The only effect of a stated day of meeting is to dispense with the necessity of showing a notice of the meeting to absentees. In whatever way the day was fixed, this object was obtained. The evidence that a day was fixed by common consent, is sufficient to show notice to all of the meetings on that day.

15. There was no quorum at two of the meetings at which losses were allowed. That was an affair of which third persons can take no advantage. The losses are admitted to be real. The duty to admit them clear. The assent of the others might he fairly assumed from their acquiescence. The vote of a quorum to assess their members to pay these losses, or to pay the debts incurred to meet them, was a distinct, unequivocal evidence of a ratification of their allowance and payment.

16. The suggestion that the amount of interest, commission, &e., was not estimated by the directors, seems not well founded. The rates of assessment were approved by the board on the basis of this estimate. It is immaterial by whom it was made.

III. There does not seem to be any evidence to support the third count. The company paid their own debts, and not any debts of the defendants. The defendants had assumed certain obligations to the company, on which they were liable to be sued, but their contract was special, and they must be sued upon it specially.

It is very clear that the claim of the plaintiffs is just and equitable. The defendant is asked to pay for two years’ insurance of his property, no more than is often paid in stock offices for the like risk.

The company are merely trustees for the members, and they have a mutual claim on each other for a just division of the losses and expenses. It is not suggested that there is any fraud, unfairness, or dishonesty in the proceedings of the directors, or of the company; and a judgment for the plaintiff' is in accordance with the substantial justice of the case.

On the first count there was a variance in the proof, and on the third a defect of evidence, which would entitle the defendants to a nonsuit; but on the second there was no sufficient cause of nonsuit, and, as a nonsuit must be of the whole action, it was properly refused.

There must, therefore, be

Judgment on the verdict.