Jellinghaus v. N. Y. Ins. Co.

B. D. Silliman, for plaintiff.

Robert Emmet, for defendants.

BY THE COURT. HOFFMAN, J.-The case arises in this form, 1st. upon one exception taken to the admission of evidence; 2d. upon a refusal to nonsuit the plaintiff; 3d. upon one exception taken to the charge of the Judge.

1st. The ruling of the Judge was excepted to, for allowing evidence that the company had agreed that the receipts given by Meynen, through his clerk, should be without prejudice to the claim upon the company for the proceeds of the sale at auction.

The defendants do not include this exception in their present points, and we apprehend the objection was not entitled to any weight.

2d. It is urged that the motion for a nonsuit ought to have been granted. This motion was made after the evidence, on both sides, had closed. When the case was heretofore before the General Term, the decision was, "that, irrespective of any agreement to the contrary, the appointment of an auctioneer, to sell the property in question, under the provisions of the policy, must be deemed, in law, to be the joint act of the parties; and, of course, the defendants would not be responsible for his failure. That the plaintiff, therefore, could not succeed in the action, without showing that the defendants took the goods as their own, and sold them as their own, and that the evidence fell far short of making out that case." A new trial was thereupon granted.

This, then, was the precise question submitted on the present trial, and by the Judge who delivered the opinion of the court upon the former occasion. It appears to us that the law of the case, so far, was then, and in that manner, settled. If the acts of Satterthwaite bound the company, there was evidence enough for the jury to find as they did; at least, their verdict was not so against evidence as to require that the case should be sent back to them.

The case does really, then, depend upon the determination of the next question, viz.: that as to the powers of the vice-president.

3d. The Chief-Justice charged, "that any acts of Mr. Satter

Jellinghaus v. N. Y. Ins. Co.

thwaite, as vice-president of the company, accepting the ownership of the goods, were binding on the company." To this part of the charge an exception was taken. We have not, in this case, the charter before us, nor any thing which tends to define the powers given by it, or by any by-law, to the vice-president. Nor have we any proof of an exercise of power, so as to raise the presumption of its being conferred, or of any ratification, or adoption of acts of a similar nature.

We have the fact before us, that the vice-president acted in the matter (sometimes with the secretary) on behalf of the company; and it was not questioned, on the former trial, nor has it been questioned here, that the office and duty of effecting the separation and sale of the portion damaged partially, was properly within the scope of his power, so far as the company had any thing to do with it. And we may observe, that the law of the case seems to be, that as both parties were interested, the auctioneer was the agent of both parties in making the sale. But the question is very different, whether such a power involves the right of actually assuming the ownership of the goods, and binding the company to a responsibility for them, and for the default of an auctioneer.

In Beatty v. The Marine Insurance Company, (2 John. Rep. 109,) the charter was in proof, and it was shown that the act in question,(acceptance of an abandonment,) could only be done with the consent of at least four directors, with the president or two assistants, or a plurality of them. The assent of the president and assistants was held insufficient.

Norton v. The National Bank, (1 Hill, 572,) only recognized the general rule, that the acts of a director or other officer of a corporation, unless official or in respect to his agency, are no more operative as against the institution than the acts of any ordinary corporator, and these are no more so than the acts of a stranger.

Hodges v. The City of Buffalo, (2 Denio, 110,) also cited, was a case of the want of power of the corporation itself to do the act in question.

The Life and Fire Insurance Company v. The Mechanics' Fire Insurance Company, (7 Wendell, 31,) involved the proposition that a president of a company, by virtue of his office only, is not empowered to borrow money on its account; some authority to do so must be proven.

Spitzer v. St. Mark's Ins. Co.

In Hanbury v. The Alleghany Mutual Insurance Company, (4 Barry Penn. Rep. 187,) there was the following instrument: "This certifies that D. H. Eddy, of Warren County, Pa., is appointed an agent of the Alleghany County Mutual Insurance Company, and is authorized to receive applications for insurance, and the premium thereon, on which applications a policy will issue, or the money be immediately returned. L. WILMOUTH, president."

After the plaintiff had closed, the defendant proposed to prove that at the time the agent requested him to become a member, the defendant was assured that the company was not insuring in the city of Pittsburg or other large cities; and, that the defendant said, "If such is the case I will become insured, and a member of said company," and gave his deposit note accordingly.

This evidence was objected to, and overruled by the court, and defendant excepted. He then further offered to prove that, at the time the president appointed Mr. Eddy the agent of the company, he said they would not, or did not, insure in the city of Pittsburg; that the company was intended for the county, and not for the city of Pittsburg, and that the agent so represented to the defendant, at the time of giving the note in question, and becoming a member of the company, and it appearing by the evidence that the company did, at the time and afterwards, insure in the city of Pittsburg. This offer the court also rejected, and sealed a bill of exceptions. The court above was of opinion that the Judge was right in rejecting the evidence offered.

In our judgment the plaintiff has failed in establishing the fact that Satterthwaite had sufficient authority to bind the company by assuming the ownership of the goods in question.

There must be a new trial.

LOUIS SPITZER v. THE ST. MARK'S INSURANCE COMPANY.

Goods were insured in a store, No. 21 Avenue D, and during the running of the policy were removed to another store, known as No. 371 Grand-street. This removal took place on the 1st of February, and notice thereof was given to the company on the 1st of March.

By one of the clauses of the policy it was provided as follows: "This insurance, (the risk not being changed,) may be continued for such further time as shall

Spitzer v. St. Mark's Ins. Co.

be agreed upon, provided the premium thereof is paid, and endorsed on this policy, or a receipt given for the same."

By the charter of the company it was provided, "that the president, or other person appointed by the board of directors for that purpose, shall be authorized in the name and in behalf of the company, to make contracts of insurance with any person or persons against loss or damage upon any property on which this company may lawfully make insurance. The policies issued pursuant to such contract of insurance shall be signed by the president, and countersigned by the secretary of the company; or the same may be signed and countersigned by such other person or persons as a majority of the directors may appoint for that purpose. Such policies shall be binding and obligatory upon the company in like manner and force as if made under the seal of the company." A loss by fire occurred on the 1st of July, 1854.

Much testimony was taken as to the acts and declarations of officers of the company, tending to show acquiescence in the change of the risks, on which the jury were instructed to pass.

On exceptions to the charge of the Judge, held—

That, under the charter and general act, no insurance could be binding unless it was in writing, nor unless it was signed by the president and secretary, or other persons designated by the directors.

Held, that the effect of the removal of the goods was to put an end entirely to the policy. It did not cover the goods afterwards, but was as void and inoperative as if never made.

Held, therefore, that to revive the policy was the same as to make one, and could only be done by a written instrument, executed in the same manner as an original instrument must be.

(Before HOFFMAN, WOODRUFF and SLOSSON, JJ.)

Heard, April; decided, June, 1856.

MOTION for judgment upon a verdict in favor of the plaintiff, taken under direction of the court, upon a case to be made, to be heard in the first instance at General Term.

On the 26th of October, 1853, the defendants, an incorporated fire insurance company, executed a policy to the plaintiff's assignor, Julius Englemans, by which they insured him in the sum of $800,"against all such loss and damage as should happen by fire, or in consequence thereof, to his merchandise or store fixtures, seven hundred and sixty dollars, of the said sum of $800, to be on his said merchandise, and the remaining forty dollars on his store fixtures, contained in the store known as Number 21 Avenue D, in the city of New York, during the term of one year thereafter, viz.: from the 26th day of October, 1853, to the 26th day of October, 1854, the said loss to be estimated according to

Spitzer v. St. Mark's Ins. Co.

the true and actual cash value of the property at the time the same (the loss) shall happen."

The only terms of the policy, or of the conditions annexed, which were noticed by counsel, or are deemed important upon the questions raised, are the following: "This insurance, (the risk not being changed,) may be continued for such further term as shall be agreed upon, provided the premium therefor is paid, and endorsed on this policy, or a receipt given for the same." And, by the first of the conditions, "if, during the insurance, the risk be increased, by the erection of buildings, or by the use or occupation of neighboring premises, or otherwise, or if for any other cause the company shall so elect, it shall be optional with the company to terminate the insurance, after notice given to the assured, or his representative, of their intention so to do; in which case the company will refund a rateable proportion of the premium."

On the 1st of February, 1854, all the goods, merchandise, and fixtures insured, were removed from the store No. 21 Avenue D, to a certain other store, known as No. 371 Grand-street. On or about the 1st of March, 1854, notice of this removal was given to the defendants, and the transactions between them, and the alleged parol declarations of their officers, hereafter stated, constituted, it is insisted, a binding agreement, to continue the policy in operation. On the 1st of July, 1854, a fire occurred at the store in Grand-street, by which the merchandise and fixtures were destroyed, and damaged beyond the amount insured.

By the charter of the company, (§ 10,) "the president, or other person appointed by the board of directors for that purpose, shall be authorized in the name and behalf of the company, to make contracts of insurance with any person or persons. The policies issued pursuant to such contracts of insurance shall be signed by the president, and countersigned by the secretary of the company, or the same may be signed and countersigned by such other person or persons as a majority of the directors may appoint and designate for that purpose; such policies shall be binding and obligatory upon the company, in like manner and force as if made under the seal of the company."

It is needless to state the testimony tending to prove an assent of the company to the continuance or transfer of the risk to the