Richards v. Louis Lipp Co.

1 Ohio Law Rep. 861, 69 Ohio St. (N.S.) 359

• Court: Ohio Supreme Court
• Decided: January 5, 1904
• Status: Published

Opinion

The Aetna Fire Association was dnly organized under Sections 3686-3690, Revised Statutes. The first of these cases is an action by the holder of a policy issued by this association, to recover for a loss sustained by fire. In the other ease the cause of action set out in the petition is an assessment by the Court of Common Pleas of Hamilton County in the matter of the dissolution of the said fire association. In both cases resistance is made to recovery, on the ground that a policy issued by such an association is void unless the assured shall have signed the constitution of the association. In contending for this proposition some reliance is placed on the following language which appears- in the opinion in State, ex rel, v. Manufacturers’ Mutual Fire Association, 50 Ohio St., 149, viz.:

“To become a member the person must sign his name to the constitution.” This is merely a construction of the language of the statute (Section 3690, Revised Statutes), which is that: “All persons who sign such constitution shall be considered and held to be members of the association, and shall be held in law to comply with all the provisions and requirements of the association.” In that case the question which is before us in these cases did not arise and was not considered, viz., whether the assured, on the one hand, might not be estopped by his conduct when sued for assessments from asserting that he had not complied with the law, or that he was not legally a member; and whether, on the other hand, the association might not be estopped by its conduct, when sued on its policy from asserting that it had not required and obtained the signature of the assured to the constitution. The remark in the opinion in State, ex rel, v. Manufacturers’ Mutual Fire Association, while it is strictly correct, was made with reference to a wholly different controversy, and is not pertinent here.

There is no provision in the statute that a policy issued by a mutual protective association shall be void if the assured does not sign the constitution. It is only by inference that it can be said that it even would be voidable. To allow either party to the policy to set up his own wrong as a defense to an obligation incurred under the policy, where the policy has been issued and held in good faith as an indemnity and where premiums have been paid and received under it, is not only manifestly unjust, but contrary to settled rules of law. It was held in Tone v. Columbus, 39 Ohio St., 281, that:

“Want of power in the corporation may be waived, or an estoppel may arise from failure to assert it at the proper time.”

And in Matt v. R. C. Mutual Protective Society, 70 Ia., 455, it was held that, “a religious society, formed under the auspices of a church, which includes a mutual life insurance scheme as one of its features, can not defend against a suit on one of its policies upon the plea of ultra vires, when it has been receiving the assessments on the policy.” In an action upon a bond and mortgage given to a “loan and fund association,” reciting in the bond that the signer is a member of such association, and recognizing the obligation of the by-laws, it was held that in the absence of fraud, the signer was estopped to deny that he was a member of the association (Howard Mut. Loan & Fund Association v. McIntyre, 3 Allen [Mass.], 571.) In Parker v. U. S. Building, Land & Loan Association, 19 W. Va., 744, it was held that:

“The failure of a member to sign the constitution of such association, if he has- for a long time acted as a member of the association, will not prevent the association from enforcing the .performance of a contract made with such member, though it be a contract which the association was not authorized to make with any but a member.”

Finally, it was held by this court, in Trumbull County Mut. Fire Ins. Co. v. Horner, 17 Ohio, 407, that a member of a mutual 'fire insurance company, when sued upon an assessment upon his deposit note, to pay a loss occasioned by fire, can not set up. a defense that he and his associate corporators have neglected to comply with the provisions of their charter.

It is our opinion, therefore, that the judgment of the Circuit Court of Hamilton County, and that of the Court of Common Pleas, in the case of The Louis Lipp Co., should be and are hereby affirmed; and that in the ease of The American Fire Brick & Clay Co., the judgments of the Circuit Court of Tus-carawas County and of the Court of Common Pleas, were erroneous; but on authority of Slingluff v. Weaver, 66 Ohio St., 621, and Gompf v. Wolfinger et al., 67 Ohio St., 144, the case is

Dismissed for wmt of jurisdiction.