Cabot v. Given

The opinion of the Court was drawn up by Davis, J. On the eighth day of November, 1855, the defendant procured a policy of insurance from the Commercial Mutual Marine Insurance Company, for the sum of $8000, on the ship Marcia Greenleaf, giving therefor his negotiable promissory note for $601, payable in fourteen months. In December following, the plaintiff, having a claim against the company, received the defendant’s note therefor, in part payment, indorsed as follows: — “ Com. M. M. Ins. Co., by George H. Folger, President.” The case shows that the plaintiff took the note in good faith, long before its maturity, and for a valuable consideration. Adams v. Smith, 35 Maine, 324. The defendant afterwards met with a loss within the terms of his policy of insurance, and, the company having become insolvent, it has not been paid. He thereupon declined to pay the note to the plaintiff; and he has filed his account for the loss in set-off in this action. But it is obvious that, if the note was legally transferred to the plaintiff, this account in set-off cannot be allowed. The defendant took upon himself [150] the risk of the solvency of the insurance company; and, if he chose to give a negotiable promissory note for the policy, he cannot complain of any Iona fide holder for requiring him to pay it. The only question, therefore, is as to the validity of the transfer of the note to the plaintiff. It is said that the case does not show that Eolger was president of the company, because it was not proved by the record of his appointment. There are some cases, in which a corporation is a party, involving the authority of the officers, in which their authority must be proved by the record. But the cases are numerous in which their authority has been proved by parol evidence. In this case, the action is between other parties, neither of whom has the custody of the records, and before a Court in another State, so that there is no compulsory process by which they can be produced. It is proved that Eolger was the acting president, prior and subsequent to the time when the note was transferred. He signed the policy of insurance, as president, for which the note- was given, only one month before it was transferred; and no annual meeting could have intervened for the choice of any one in his place. We think the evidence is sufficient that he was authorized to act as president at the time. But it is said that, if he was president of the company, and ■ so, according to the customary mode of transacting such business, authorized to transfer the note, the presumption that he was so authorized is disproved by the by-laws, which are a part of the case. And it is true that no specific authority to indorse notes is given by the code of by-laws to the president, .or to any other officer of the company. But it does not follow that such authority is not necessarily implied in powers which are granted. • And it should. be remembered that this is not an action against the company as indorsers, upon the contract of indorsement. It is not a case embraced in the terms of § 16 of the by-laws. It is a suit between other parties, involving only the authority of the president to sell the note in payment of a demand against the company. And, in addition to the presump [151] tion arising from the nsnal course of such transactions, the president is made, by the by-laws, ex officio treasurer; and so he had the legal custody of the assets. He was also authorized to represent the company as stockholders in banks and other corporations; to receive all moneys coming due, and give good and sufficient discharges for the same; to adjust and pay all losses, &c. He transferred the note in suit, before any loss had happened to the defendant, and in payment of a loss that the plaintiff had suffered. And we are satisfied that the transfer was valid and sufficient to pass the title. The rulings of the presiding Judge were correct, — whether as matters of law or of fact being immaterial, as the case did not go to a jury. According to the agreement of the parties, the defendant must be defaulted. Tenney, C. J., Hathaway, May, and Goodenow, J. J,, concurred.