The opinion of the Court was delivered by
Mr. Chief Justice McIver.
These two cases, being of a similar character, were heard together; but, as they differ in some of their features, it seems to us best to consider them separately; and we will first consider the case of D. P. Eagrone; but the remarks we shall make in regard to the points made in that case must be regarded as applicable to similar points made in the other case.
D. P. Eagrone commenced his action against the defendants on the 1st day of September, 1894, on' a paper purporting to be a policy of insurance, a copy of which is set out in the “Case,” to recover the amount of his loss by fire in the destruction of his gin-house and machinery connected therewith. The following is a copy of so much of the policy as it is deemed necessary to set forth here: “$500.00. No. , . Policy of the Farmers’ Mutual Fire Insurance Association of South Carolina. This agreement this day entered into between D. P. Eagrone (who is called the insured) and the Farmers’ Mutual Fire Insurance Association for the county of Edgefield, whereby it is agreed,” &c. Setting forth the terms and conditions of the contract in detail, which at this point need not be stated. This paper [407]*407was signed by the parties as follows: “W. H. Timmerman, president; J. S. C. Carpenter, general agent; D. P. Eagrone; insured.” This contract seems to have been entered into on the 3d day of October, 1893 — at least, that is the day from which the insurance was to commence.
This action was brought against the defendants individually, and was based upon the theory that defendants held themselves out as agents of the Farmers’ Mutual Fire Insurance Association for the county of Edgefield, when, in fact, there was no such association legally established, and, therefore, the defendants, pretending to act as agents of a corporation having no legal existence as such, and no power to enter into the contract evidenced by the policy, became personally liable for the performance of such contract. The defence was so fully and fairly stated in the charge of the Circuit Judge (which will be reported) as to supersede the necessity of making any further statement.
The case came on for trial before his Honor, Judge Earle, and a jury, and when the complaint was read, the defendants demurred to the same, on the. ground that it did not state facts sufficient to constitute a cause of action, “in this, it being described in the complaint as a mutual insurance association, the plaintiff is estopped from denying the corporate existence of the association.” The demurrer was overruled, and no exception was noted to such ruling, and there is no ground of appeal imputing error in such ruling. That matter, therefore, may be dismissed from further consideration. It is stated in the “Case” that the answer was amended so as to allege that the plaintiff, having become a member of a mutual insurance association, and having recognized its existence by paying assessments and otherwise, he is estopped now from denying the corporate existence of the association. At the close of the testimony adduced in behalf of the plaintiff, defendants moved for a nonsuit, upon the ground that the plaintiff, having become a member of a mutual insurance association, is estopped from denying its corporate existence; and upon the further [408]*408ground that there is no testimony to sustain the material állegation in the complaint, that there was no such corporation as a mutual fire insurance association of Edgefield, South Carolina, a fact which was known to the defendants. The motion was refused, upon the ground that the admissions in the answer were sufficient to carry the case to the jury. The defendants then offered their testimony, and the Judge charged the jury, as set out in full in the “Case,” and a verdict was rendered in favor of plaintiff. From the judgment entered thereon defendants appealed, upon the several grounds set forth in the record; but as they should be embraced in the report of the case, along with the Judge’s charge; we need not set them out in detail here.
1 The first, second, and third grounds of appeal may be considered together, as they all relate to the question as to whether the nonsuit was improperly refused. It seems to us that the most cursory reading of the pleadings and evidence, as set out in the “Case,” will show that there was testimony tending to prove that the Farmers’ Mutual Fire Insurance Association of Edgefield County had no legal existence at the time this policy was issued, in October, 1893, and never had any such existence until the act constituting such corporation was approved, 4th January, 1894, 21 Stat., 619, which act was offered in evidence before the plaintiff closed his testimony. And the answer shows that this fact was known to defendant, who manifestly relied upon the erroneous notion, as we shall hereafter see, that under the by-laws of the Chester association, which had been chartered in 1891, they had authority to organize the Edgefield association, and undertook to do so. If, therefore, the Edgefield association had no legal existence, it is difficult to understand how the plaintiff could become a member of a corporation which had no existence; and the fact that he undertook to become so, under the mistaken misrepresentation of defendants that there was such a corporation, certainly could not work the estop[409]*409pel claimed by the defendant. We think it clear that neither of these three grounds can be sustained.
2 The fourth and 'fifth grounds of appeal impute two errors in charging plaintiff’s fourth request: 1st, in not adding to that request the further instruction that defendants would not be liable if the plaintiff knew as much as the defendants in reference to the policy of insurance. 2d. That in charging that request, the constitutional inhibition against charging on the facts was disregarded. As to the first imputed error, two answers may be made. In the first place, the Judge was not requested to give any such additional instruction, and if the defendants desired such instruction, it was their duty to ask for it. And, in the second place, there was no testimony upon which such instruction could,, properly, have been asked for, as there was no evidence that plaintiff knew as much as the defendants in reference to the policy of insurance. As to the second error, the phraseology of the request itself — “if the jury believed from the evidence,” &c. — is a sufficient answer to that imputation.
8 The sixth, seventh, ninth, and eleventh grounds of appeal make substantially the same question, and may, therefore, be considered together. That question is, whether the defendants can be held liable without proof of actual moral fraud on their part. That point is so conclusively determined by the authorities in this State adversely to the view contended for appellants, that we need not go elsewhere for authority, though much of it will be found collected in our own cases, upon which we shall rest our conclusions. In Bank v. Wray, 4 Strob., 87, it was held, expressly affirming the previous case of Edings v. Brown, 1 Rich., 255, that if one signed a note or endorsed a bill, as agent, when he is not agent, he is personally liable, although he do so bona fide, and does no other act to deceive or mislead the person with whom he deals, except by the assumption of agency when he is not agent. Falsehood and deceit are not necessary to charge [410]*410an agent peronally with a contract he had no authority to make.
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The opinion of the Court was delivered by
Mr. Chief Justice McIver.
These two cases, being of a similar character, were heard together; but, as they differ in some of their features, it seems to us best to consider them separately; and we will first consider the case of D. P. Eagrone; but the remarks we shall make in regard to the points made in that case must be regarded as applicable to similar points made in the other case.
D. P. Eagrone commenced his action against the defendants on the 1st day of September, 1894, on' a paper purporting to be a policy of insurance, a copy of which is set out in the “Case,” to recover the amount of his loss by fire in the destruction of his gin-house and machinery connected therewith. The following is a copy of so much of the policy as it is deemed necessary to set forth here: “$500.00. No. , . Policy of the Farmers’ Mutual Fire Insurance Association of South Carolina. This agreement this day entered into between D. P. Eagrone (who is called the insured) and the Farmers’ Mutual Fire Insurance Association for the county of Edgefield, whereby it is agreed,” &c. Setting forth the terms and conditions of the contract in detail, which at this point need not be stated. This paper [407]*407was signed by the parties as follows: “W. H. Timmerman, president; J. S. C. Carpenter, general agent; D. P. Eagrone; insured.” This contract seems to have been entered into on the 3d day of October, 1893 — at least, that is the day from which the insurance was to commence.
This action was brought against the defendants individually, and was based upon the theory that defendants held themselves out as agents of the Farmers’ Mutual Fire Insurance Association for the county of Edgefield, when, in fact, there was no such association legally established, and, therefore, the defendants, pretending to act as agents of a corporation having no legal existence as such, and no power to enter into the contract evidenced by the policy, became personally liable for the performance of such contract. The defence was so fully and fairly stated in the charge of the Circuit Judge (which will be reported) as to supersede the necessity of making any further statement.
The case came on for trial before his Honor, Judge Earle, and a jury, and when the complaint was read, the defendants demurred to the same, on the. ground that it did not state facts sufficient to constitute a cause of action, “in this, it being described in the complaint as a mutual insurance association, the plaintiff is estopped from denying the corporate existence of the association.” The demurrer was overruled, and no exception was noted to such ruling, and there is no ground of appeal imputing error in such ruling. That matter, therefore, may be dismissed from further consideration. It is stated in the “Case” that the answer was amended so as to allege that the plaintiff, having become a member of a mutual insurance association, and having recognized its existence by paying assessments and otherwise, he is estopped now from denying the corporate existence of the association. At the close of the testimony adduced in behalf of the plaintiff, defendants moved for a nonsuit, upon the ground that the plaintiff, having become a member of a mutual insurance association, is estopped from denying its corporate existence; and upon the further [408]*408ground that there is no testimony to sustain the material állegation in the complaint, that there was no such corporation as a mutual fire insurance association of Edgefield, South Carolina, a fact which was known to the defendants. The motion was refused, upon the ground that the admissions in the answer were sufficient to carry the case to the jury. The defendants then offered their testimony, and the Judge charged the jury, as set out in full in the “Case,” and a verdict was rendered in favor of plaintiff. From the judgment entered thereon defendants appealed, upon the several grounds set forth in the record; but as they should be embraced in the report of the case, along with the Judge’s charge; we need not set them out in detail here.
1 The first, second, and third grounds of appeal may be considered together, as they all relate to the question as to whether the nonsuit was improperly refused. It seems to us that the most cursory reading of the pleadings and evidence, as set out in the “Case,” will show that there was testimony tending to prove that the Farmers’ Mutual Fire Insurance Association of Edgefield County had no legal existence at the time this policy was issued, in October, 1893, and never had any such existence until the act constituting such corporation was approved, 4th January, 1894, 21 Stat., 619, which act was offered in evidence before the plaintiff closed his testimony. And the answer shows that this fact was known to defendant, who manifestly relied upon the erroneous notion, as we shall hereafter see, that under the by-laws of the Chester association, which had been chartered in 1891, they had authority to organize the Edgefield association, and undertook to do so. If, therefore, the Edgefield association had no legal existence, it is difficult to understand how the plaintiff could become a member of a corporation which had no existence; and the fact that he undertook to become so, under the mistaken misrepresentation of defendants that there was such a corporation, certainly could not work the estop[409]*409pel claimed by the defendant. We think it clear that neither of these three grounds can be sustained.
2 The fourth and 'fifth grounds of appeal impute two errors in charging plaintiff’s fourth request: 1st, in not adding to that request the further instruction that defendants would not be liable if the plaintiff knew as much as the defendants in reference to the policy of insurance. 2d. That in charging that request, the constitutional inhibition against charging on the facts was disregarded. As to the first imputed error, two answers may be made. In the first place, the Judge was not requested to give any such additional instruction, and if the defendants desired such instruction, it was their duty to ask for it. And, in the second place, there was no testimony upon which such instruction could,, properly, have been asked for, as there was no evidence that plaintiff knew as much as the defendants in reference to the policy of insurance. As to the second error, the phraseology of the request itself — “if the jury believed from the evidence,” &c. — is a sufficient answer to that imputation.
8 The sixth, seventh, ninth, and eleventh grounds of appeal make substantially the same question, and may, therefore, be considered together. That question is, whether the defendants can be held liable without proof of actual moral fraud on their part. That point is so conclusively determined by the authorities in this State adversely to the view contended for appellants, that we need not go elsewhere for authority, though much of it will be found collected in our own cases, upon which we shall rest our conclusions. In Bank v. Wray, 4 Strob., 87, it was held, expressly affirming the previous case of Edings v. Brown, 1 Rich., 255, that if one signed a note or endorsed a bill, as agent, when he is not agent, he is personally liable, although he do so bona fide, and does no other act to deceive or mislead the person with whom he deals, except by the assumption of agency when he is not agent. Falsehood and deceit are not necessary to charge [410]*410an agent peronally with a contract he had no authority to make. In the opinion of the Court in that case we find language so pertinent to the present case that we quote and adopt it here: “The injury proceeded from the act of the defendant. He would evade liability under the plea of innocent mistake. In a moral sense, the act of defendant may have been innocent, for lie had no desire or apprehension of mischief to his principal; but in its practical effect, it was not innocence. * * * But even when the agent bona fide believes he has authority to contract and has not, he is still personally liable. In such cases, it is true, the agent is not actuated by any fraudulent motive, nor has he made any statement which he knows was untrue. But his liability depends on the same principle as in the first case.” In this case, the Court takes pleasure in saying that the evidence does not justify any imputation of moral fraud or intentional wrong on the part of the defendants; and, indeed, we do not understand that any such imputation is made. But, under the principles laid down in the cases above cited, in which cases of the highest ■ authority elsewhere are reviewed, we must hold that the absence of moral fraud or intentional wrong-doing on the part of the defendants is not sufficient to relieve them from liability. It follows, therefore, that these grounds must be overruled.
4 The eighth ground of appeal, which imputes error to the Circuit Judge in instructing the - jury that the Farmers’ Mutual Fire Association of Chester, S. C., had no power to organize a subordinate branch organization in Edgefield County, cannot be sustained. That a corporation, which is a creature of the Legislature, can have no powers except such as are conferred by its charter, either in expressed terms or by necessary implication, is a proposition too well settled to need authority to support it. But, if any is desired, it may be found in the case of Thomas v. Railroad Company, 101 U. S., 71, and in Oregon Railway Co. v. Oregonian Railway Co., 130 U. S., 1. Turning, then, to the charter of the Chester association, which will [411]*411be found in 20 Stat., 1315, it is very clear that no such power has been conferred, either in express terms or by necessary implication. We do not wish to be understood as admitting that the Legislature would have the power to delegate its legislative power to a corporation by authorizing it to create another corporation; for the Legislature has not undertaken to do so, and, hence, no question as to its power, in that respect, arises in this case.
The tenth and thirteenth grounds, which impute error in refusing to receive the by-laws of the Chester association in the evidence in this case, may be considered together. Inasmuch as the policy upon which this action was based contained no reference whatever to the by-laws of the Chester association, it is difficult to conceive how such by-laws would be pertinent to any issue in this case. This ground is overruled.
5 The twelfth ground of appeal cannot be sustained. If the Edgefield association had no legal existence, as we have seen, it is difficult to conceive how it could have any members of any kind. The policy purporting to be issued by a company or association which had no legal existence, and which, therefore, could have no agents, does not and could not render any of the parties agents of such non-existent corporation. That association cannot be regarded as a muttial company, for the obvious reason that it was no company at all.
6 The fourteenth exception cannot be sustained. It is a familiar rule that when the parties have reduced their contract to writing, the Court can only look to the terms in which the parties have expressed their intention in such writing. In 1 Greenlf, on Bv., sec. 2/5, it is said: “When parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, was reduced to writing; and all [412]*412oral testimony of a previous colloquium between the parties, or of conversation or declaration at the time when it was completed or afterwards, as it would tend in many instances to substitute a new and different contract for the one which was really agreed upon, to the prejudice, possibly, of one of the parties, is rejected. In other words — as the rule is now more briefly expressed — parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument.” Under this rule it is very clear that the testimony of the witness referred to in the fourteenth exception, as to what occurred at the time the policy was issued or before or afterwards, was inadmissible.
7 The fifteenth exception cannot be sustained. In the first place, the Circuit Judge did not instruct the jury tliat this was a case of constructive fraud; but, if he had done so, we, as we have said, so regard it, and think it due to the defendants to say that there does not appear to be any element of moral fraud in the transaction; and, in the second place, there was no error in his definition of constructive fraud, as may be seen by reference to these standard authorities: Cooley in his work on Torts. 474; Story in his Equity Jur., secs. 258-9, and 2 Pom. Eq. Jur., section 4 of chap. III.
The sixteenth exception must be overruled. It is an entire misconception of the charge of the Circoit Judge to suppose that there was any inconsistency whatever in the charge. In the first place, in response to one of the requests submitted by the defendants, he was speaking of actual moral fraud, while in the other place he was speaking of a different and distinct class of frauds — legal or constructive fraud.
The seventeeth exception needs no special consideration, and it is very obvious from what we have already said that it cannot be sustained.
We proceed next to the consideration of the case of J. H. Eagrone, or rather to those points wherein it differs from the case of D. P. Eagrone. The main difference between [413]*413the two cases is, that in the case of J. H. Eagrone the answer was amended by inserting a paragraph alleging a mutal mistake in framing the policy of insurance, and that it was mutually understood that the policy was issued by the Farmers’ Mutual Insurance Association of Chester, S. C., operating in Edgefield County through its subordinate branch, and was the company bound thereby, and that by the name used in the policy the parties meant the Farmers’ Mutual Insurance Association of Chester, S. C., operating in Edgefield County through its said subordinate branch, and that it hereby became liable on said insurance contract; whereas, in the case of D. P. Eagrone, there was no such amendment, and no such allegation in the answer. The only exceptions, therefore, necessary to be noticed in this case are the tenth, eleventh, twelfth, and thirteenth.
8 The tenth exception cannot be sustained for two reasons: 1st. Because it is not in proper form, as it does not set forth the request to charge referred to, or the modification complained of. 2d. Because, even if it was presented in the proper form, it could not be sustained, because the request as submitted was charged, and the only modification made was a very proper one, that the jury should believe the fact upon which such request was based. There being nothing in the policy to show that there was any condition therein stated that the insurance should be void if the fire occurred while the machinery was being operated by steam; of course, it was necessary that the jury should be satisfied by the evidence that such condition was agreed to as a part of the contract, before such condition could affect the plaintiff’s right to recover. It is clear that there was no error in so modifying the request.
The eleventh exception is based upon the assumption that the policy was issued by a mutual insurance association, and, as we have seen, there was no such corporation as that named in the policy, this assumption is unfounded. This exception cannot, therefore, be sustained.
[414]*4149 [413]*413The twelfth exception must be overruled, as the question [414]*414there made is distinctly disposed of adversely to appellants by the case Devereux v. Champion Cotton Press Co., 14 S. C., 396, where the facts .were substantially the same as those presented in this case.
10 The thirteenth exception cannot be sustained for two reasons: 1st. Because the point there raised has no practical application to this case. 2d. Because, even if it had, there was no error in the construction which the Circuit Judge placed upon the by-laws referred to. First. Inasmuch as the jury had been explicitly instructed that, if they believed that there was any such mutual mistake as that alleged in the amendment to the answer, the plaintiff could not recover; and inasmuch as the jury did find a verdict in favor of the plaintiff, we are compelled to assume that the jury did not believe that there was any such mutual mistake; and, if there was not, then it is impossible to conceive what the by-law of the Chester company had to do with this case. Hence, the proper construction of such by-law would be a purely speculative matter so far as this case is concerned; and, consequently, it would make no difference whether the Circuit Judge was right or wrong in his construction of the by-law. Second. The by-law referred to reads as follows: “The agent shall take no steam mill into this association. If a gin-house or other buildings be taken into the association which shall at intervals be operated by steam, the insurance on such building or buildings adjacent and endangered thereby shall be removed so long as it is so operated; but the steam being removed from such building, the policy shall again become intact.” The Judge construed this by-law as a reasonable by-law, but that it must receive a strict construction; and, therefore, while the company would be relieved from liability for the building if it was burned while the machinery was being operated by steam, it would not relieve the company from liability for the machinery if it was burned while operated by steam, for the reapon that nothing was said about machinery in the by[415]*415law. We do not see how any other construction could be placed upon it, without interpolating words into the bylaw which it does not contain. But, as we have said, we do not regard this question as pertinent to the case.
It will be necessary for the Reporter to include in his report the charge of the Circuit Judge, and the exceptions thereto, in this case of J. H. Ragrone, as well as the charge and the exceptions in the case of D. P. Ragrone.
The judgment of this Court is, that the judgment of the Circuit Court, in both of the cases above stated, be affirmed.