[449]*449Tlie opinion of the Court was by
Emeby J.
In this case, it is insisted by the defendants that the amendment allowed before issue joined, was in violation of the 15th rule of this Court. The restriction in that rule is, that amendments will not be allowed, unless consistent with the original declaration, and for the same cause of action. By inspecting the declaration, we discover that the same policy is described in both, excepting as to date. Conformably to our practice, we consider that the amendment was warranted. Matthews v. Blossom, 15 Maine R. 400.
The motion for a nonsuit, we think, cannot be sustained, for such evidence was exhibited as called for the intervention of a jury to pronounce upon its effect. The case cited from 2 Peere Williams, 170, Da Costa v. Scandrett, is very different from this. That was for an injunction, and to be relieved against the insurance as fraudulent, because one having a doubtful account of his ship described like his, was taken, insured her, without giving any information to the insurers of what he had heard, either as to the hazard or circumstances which might induce him to believe that his ship was in great danger, if not actually lost. Jt was held that the concealing of this intelligence was a fraud. The policy was ordered to be delivered up with costs, but tho premium to bo paid back and allowed out of the costs. This was decided in 1723.
In the present case, the letter which the plaintiff had received was immediately communicated to the supervising officers of the company, before the healing was agreed upon. This subject seems to have been fully settled by the verdict.
But with the usual candor of the learned counsel for the defendants, it is frankly admitted, that the material part on which they rely is the question, was the contract executed so as to bind the company ?
In ordinary circumstances between individuals it is conceded that what was proved to have been done might he sufficient. But it is insisted that the defendants are acting as agents for others, with restricted powers, to be executed only in strict conformity with the provisions of the charter. And that all the prerequisites for tho due execution of the original contract should be fully complied [450]*450with, in respect to the healing, inasmuch as it was giving life and vigor to a contract which was vacated by the deviation from the original voyage.
We are well aware of the delicacy and difficulty of the situation of the directors of such an institution as that of the defendants. And that therefore the directors may feel bound to press every objection against responsibility on supposed contracts.
It is urged that the case of Head & Amory v. Providence Insurance Company, 2 Cranch, in the opinion of C. J. Marshall, which has never been overruled, is decisive of the present case. What is decided there is, that the act of incorporation is to the defendants an enabling act; it gives them all the power they possess; it enables them to contract, and when it prescribes to them a mode of contracting, they must observe that mode, or the instrument no more creates a contract than if the body had never been incorporated.
In the present case, there was no agreement to vacate the first policy, but merely to heal the infirmity resulting from the deviation. In Head & Amory v. Prov. Ins. Co. it is said in the opinion, that a contract varying a policy is as much an instrument as the policy itself, and therefore can only be executed in the manner prescribed by law.
The inquiry now is rather a question as to the effect of evidence, whether the company, through their officers, have assented to the proposition of the plaintiff for the healing, and acted under it con-formably to the requisition of the charter and by-laws of the corporation. 12 Wheat. 64, Bank of U. S. v. Dandridge, at page 73. The verdict has established that it was the same policy, and that the healing was completed.
After the lapse of twenty-three years from the time of the decision of Head & Amory v. Prov. Ins. Co., in the case of the Bank of the U. S. v. Dandridge, though the decision in Head & Amory v. Prov. Ins. Co. was received and approved, yet in the case of the bank it was said by Justice Story, delivering the opinion of the Court, “We do not admit, as a general proposition, that the acts of a corporation, although in all other respects rightly transacted, are invalid merely from the omission to have them reduced to writing, unless the statute creating it makes such writing indis-pensible as evidence, or to give them an obligatory force. If the [451]*451statute imposes such a restriction, it must be obeyed; if it does not, then it remains for those who assert the doctrine, to establish it by the principles of common law, and by decisive authorities. None such have, in our judgment, been produced. By the general rules of evidence, presumptions are continually made in cases of private persons, of acts even of the most solemn nature, when those acts are the natural result or necessary accompaniment of other circumstances. The same presumptions are, we think, applicable to corporations ; acts done by the corporation which presuppose the existence oj other acts to malee them legally operative are presumptive proofs of ike latter.”
If there be justice in the foregoing suggestion, it cannot be inapplicable to cite the case of Mead v. Davidson, 3 Adol. & Ellis, 303. “ Insurance was proposed on the plaintiff’s ship Crisis, to a mutual insurance society, called the British Association of London, of which the plaintiff and defendant were members, in February, 1829, and the premium paid, lost or not lost, from February 15, 1829, to February 15, 1830. The policy was formally executed on the 21st of October, 1829. The loss had before that day become known to both parties. By the practice of the society, policies used to be filled up and delivered out as members applied for them. By the rules of the society, the sums insured, were to commence on the day of the ship being accepted by the committee, and to continue in force twelve months from that time, paying five per cent, charge for policies, power of attorney, and two guineas for survey. A nonsuit had been entered with leave to move to set it aside.” Denman C. J. in the course of his opinion says, “ he, the plaintiff, bought and paid for the underwriter’s promise to indemnify. If his ship had arrived, the underwriter would have kept the whole premium ; though she has perished he cannot be relieved from his agreement. Equity ivould have compelled Mm to execute the formal policy whenever tendered to him. In voluntarily executing he has only performed a manifest duty, and cannot now retract the obligation.”
The question in the case of Head & Amory v. Prov. Ins. Co. was whether a certain paper, written by the secretary but not signed, was a settlement or cancelling by the President and directors.
[452]*452It is urged, that a by-law should not violate any provision of the charter of corporation. The correctness of this argument is readily acknowledged.
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[449]*449Tlie opinion of the Court was by
Emeby J.
In this case, it is insisted by the defendants that the amendment allowed before issue joined, was in violation of the 15th rule of this Court. The restriction in that rule is, that amendments will not be allowed, unless consistent with the original declaration, and for the same cause of action. By inspecting the declaration, we discover that the same policy is described in both, excepting as to date. Conformably to our practice, we consider that the amendment was warranted. Matthews v. Blossom, 15 Maine R. 400.
The motion for a nonsuit, we think, cannot be sustained, for such evidence was exhibited as called for the intervention of a jury to pronounce upon its effect. The case cited from 2 Peere Williams, 170, Da Costa v. Scandrett, is very different from this. That was for an injunction, and to be relieved against the insurance as fraudulent, because one having a doubtful account of his ship described like his, was taken, insured her, without giving any information to the insurers of what he had heard, either as to the hazard or circumstances which might induce him to believe that his ship was in great danger, if not actually lost. Jt was held that the concealing of this intelligence was a fraud. The policy was ordered to be delivered up with costs, but tho premium to bo paid back and allowed out of the costs. This was decided in 1723.
In the present case, the letter which the plaintiff had received was immediately communicated to the supervising officers of the company, before the healing was agreed upon. This subject seems to have been fully settled by the verdict.
But with the usual candor of the learned counsel for the defendants, it is frankly admitted, that the material part on which they rely is the question, was the contract executed so as to bind the company ?
In ordinary circumstances between individuals it is conceded that what was proved to have been done might he sufficient. But it is insisted that the defendants are acting as agents for others, with restricted powers, to be executed only in strict conformity with the provisions of the charter. And that all the prerequisites for tho due execution of the original contract should be fully complied [450]*450with, in respect to the healing, inasmuch as it was giving life and vigor to a contract which was vacated by the deviation from the original voyage.
We are well aware of the delicacy and difficulty of the situation of the directors of such an institution as that of the defendants. And that therefore the directors may feel bound to press every objection against responsibility on supposed contracts.
It is urged that the case of Head & Amory v. Providence Insurance Company, 2 Cranch, in the opinion of C. J. Marshall, which has never been overruled, is decisive of the present case. What is decided there is, that the act of incorporation is to the defendants an enabling act; it gives them all the power they possess; it enables them to contract, and when it prescribes to them a mode of contracting, they must observe that mode, or the instrument no more creates a contract than if the body had never been incorporated.
In the present case, there was no agreement to vacate the first policy, but merely to heal the infirmity resulting from the deviation. In Head & Amory v. Prov. Ins. Co. it is said in the opinion, that a contract varying a policy is as much an instrument as the policy itself, and therefore can only be executed in the manner prescribed by law.
The inquiry now is rather a question as to the effect of evidence, whether the company, through their officers, have assented to the proposition of the plaintiff for the healing, and acted under it con-formably to the requisition of the charter and by-laws of the corporation. 12 Wheat. 64, Bank of U. S. v. Dandridge, at page 73. The verdict has established that it was the same policy, and that the healing was completed.
After the lapse of twenty-three years from the time of the decision of Head & Amory v. Prov. Ins. Co., in the case of the Bank of the U. S. v. Dandridge, though the decision in Head & Amory v. Prov. Ins. Co. was received and approved, yet in the case of the bank it was said by Justice Story, delivering the opinion of the Court, “We do not admit, as a general proposition, that the acts of a corporation, although in all other respects rightly transacted, are invalid merely from the omission to have them reduced to writing, unless the statute creating it makes such writing indis-pensible as evidence, or to give them an obligatory force. If the [451]*451statute imposes such a restriction, it must be obeyed; if it does not, then it remains for those who assert the doctrine, to establish it by the principles of common law, and by decisive authorities. None such have, in our judgment, been produced. By the general rules of evidence, presumptions are continually made in cases of private persons, of acts even of the most solemn nature, when those acts are the natural result or necessary accompaniment of other circumstances. The same presumptions are, we think, applicable to corporations ; acts done by the corporation which presuppose the existence oj other acts to malee them legally operative are presumptive proofs of ike latter.”
If there be justice in the foregoing suggestion, it cannot be inapplicable to cite the case of Mead v. Davidson, 3 Adol. & Ellis, 303. “ Insurance was proposed on the plaintiff’s ship Crisis, to a mutual insurance society, called the British Association of London, of which the plaintiff and defendant were members, in February, 1829, and the premium paid, lost or not lost, from February 15, 1829, to February 15, 1830. The policy was formally executed on the 21st of October, 1829. The loss had before that day become known to both parties. By the practice of the society, policies used to be filled up and delivered out as members applied for them. By the rules of the society, the sums insured, were to commence on the day of the ship being accepted by the committee, and to continue in force twelve months from that time, paying five per cent, charge for policies, power of attorney, and two guineas for survey. A nonsuit had been entered with leave to move to set it aside.” Denman C. J. in the course of his opinion says, “ he, the plaintiff, bought and paid for the underwriter’s promise to indemnify. If his ship had arrived, the underwriter would have kept the whole premium ; though she has perished he cannot be relieved from his agreement. Equity ivould have compelled Mm to execute the formal policy whenever tendered to him. In voluntarily executing he has only performed a manifest duty, and cannot now retract the obligation.”
The question in the case of Head & Amory v. Prov. Ins. Co. was whether a certain paper, written by the secretary but not signed, was a settlement or cancelling by the President and directors.
[452]*452It is urged, that a by-law should not violate any provision of the charter of corporation. The correctness of this argument is readily acknowledged. But the by-laws should be deemed to have been adopted with an intention of facilitating the exercise of all the powers given by the charter, and should have a liberal construction in order to give just effect to the deliberate arrangement of the corporation, if not found directly opposed to the provisions of the charter.
We do not perceive that more should be required than to accomplish the expression of the views of the parties, as to what they intended to be bound, in the forms by themselves prescribed, if they are susceptible of being justly considered conformable to the substantial requisitions of the charter. Ought it to be a question whether after the deviation was known, and a consent to heal it, as it is called, and an additional liberty given, on further consideration, it should be considered otherwise than as a waiver of all exceptions as to the deviation. Certainly the corporation were competent thus to waive.
For the purposes of justice, to prevent conclusions unfavorable to the fair views of parties concerned, we must give the same construction as we should give to acts of others in similar circumstances.
We do find that the instrument produced is signed by the President, countersigned by the secretary, recorded as to all which took place on the 5th of March, and displaying the healing clause. It appears perfect in its form with different dates, the healing being on the 14th day of March.
On the evidence, we find that all the important acts to complete the contract, as between the parties, were done before the secretary began to record the healing. This particular matter was to be performed principally for the benefit and accommodation of the defendants.
We must regard the previous signing by the officers, was by them approved and adopted as sufficient as to the healing clause, without a reiteration of the form of running over with a pen the same letters of their names.
The beginning to record the healing was such a subsequent act, as on this part of the subject carries indubitable presumptive evi[453]*453dence, that all the previous necessary forms bad been complied with. We cannot exclude from our consideration the usages of the parties, which we consider were rightly introduced in proof. A contrary construction would draw this consequence, that the act incorporating this company, instead of being an enabling act to effect insurances, would rather become an act for enabling a corporation, acting by its agents, to sustain its agreements when beneficial to them, and to evade them, when disasters came, against which it was apprehended they had insured. Because it would be only necessary to procrastinate the recording of all healings, and take the hazard of being relieved upon some future intelligence.
It may not be too much to say that the peculiarity of the occurrences first presented to the consideration of the office, tending to excite suspicion, might well induce them to bring the subject to judicial investigation ; and the trial before the jury, the proper tribunal for settling such questions, has freed the plaintiff from all imputation of fraud or concealment.
We do not perceive error in the instructions given by the Court to the jury, or in the declining to give the requested instructions, and therefore there must be judgment on the verdict.