Georgia Home Insurance v. Boykin

SHARPE, J. In determining the sufficiency of the pleas it is important, to notice that the complaint is double. Each count of it avers the making of a contract between the defendant and George Stuart, whereby the former, in part consideration of his purchase of the latter’s interest in the firm of Stuart Brothers, undertook to pay the. debts of that firm including the debt [366] owing to plaintiff. Each count also avers the making, of a promise in writing directly to the plaintiff by defendant and M. W. Stuart, members of the newly formed firm of E. M. Boykin & Co., to pay1 that debt. These undertakings are not shown to have constituted one contract, though it is averred that they were parts of the same transaction, tío far as appears from the complaint the consideration for the promise to George Stuart moved from him alone by the sale of his partnership interest. It is not shown that plaintiff was originally a party to the contract with George Stuart, or that in the making of that contract it bound itself to release George Stuart from the debt, or to do anything. It is averred, in substance, that being informed of the transactions mentioned as had between the firm members of Stuart Brothers and Boykin & Co., plaintiff assented thereto and agreed to appoint Boykin & Co. its agent, and that by reason of what had occurred, including its acceptance of the written promise made, plaintiff discharged George Stuart from liability for its debt; but the complaint is silent as to whether such-discharge occurred when the contract was made with George Stuart, and as to whether the appointment of Boykin & Co. to the agency, was made in consideration of dedefendant’s assumption of plaintiff’s debt, vis a beneficiary of the contract between George Stuart and defendant, plaintiff, though it may not have been an original party thereto, had a right to subsequently release George Stuart and enforce that contract by suit in its own name.-1 — Garver v. Eads, 65 Ala. 190. But before this right became fixed by such release, it was subject to be defeated by a rescission of the contract as between the original parties.- — Pugh, Stone & Go. v. Barnes, 108 Ala. 107. A rescission having such effect, might have been made in the absence of, and without notice to the plaintiff, so long as it- stood aloof from and gave nothing in consideration for the contract. If the complaint could be treated -asi declaring alone on defendant’s contract with George Stuart, under the principle above referred to, the pleas setting up rescission for the alleged [367] fraud of George Stuart, viz.: pleas 4, 4 1-2, 5, 9, and 18, would each have been good. But. those pleas do not answer the declaration on the promise made by defendant and M. W. Stuart to the plaintiff direct. That declaration in itself discloses a cause of action. It does not expressly aver the consideration for that promise, but it does not negative the existence of a consideration, as consisting in plaintiff’s release of George Stuart, or in its appointment of Boy-kin & Co. as its agent, or in something not mentioned in tiie complaint, or in the pleas, and not amounting to a detriment to plaintiff. That promise being in writing is made by section 1800 of the 'Code to import, a consideration, and this statute has been construed as obviating the necessity of averring the consideration, in declarations framed on writings of the class to which it applies. — Thompson v. Hall, 16 Ala. 204; Bolling v. Munchus, 65 Ala. 558. Without plaintiff’s concurrence no contract after coming validly into existence as between it and the defendant upon a consideration moving as between them, was subject to rescission for any fraud or conduct of George Stuart alone. Section 1199 of the Code of 1886 provided that “Before any insurance company not organized under or by the laws, of this State, shall transact any business .of insurance, other than life or accident insurance in this State, through agents, or otherwise, it shall pay into the treasury of the State, the sum of one hundred dollars, and that amount thereafter in the month of January, annually," etc. In the same1 article of that Code it was by section 1204 directed that upon compliance by any insurance company. with the foregoing and other statutory requirements, the auditor should “issue to such -company a license to transact the business of insurance in this State; itself, or by such agents as if may appoint, until the 15th clay of January next, ensuing, which license shall be renewed in January of each year, on compliance with the terms of this article and subject to the conditions therein.” These requirements, being limited by their terms to the business of insurance, extend only to dealings between the foreign company and those it would insure, such as look to or involve [368] contracts of insurance. They do not, as is assumed by pleas 10 and 13 include transactions had merely to secure or collect from their agents, or from others who may assutaie them, debts which in the absence of such requirements would arise from the contract of agency. Plea 12 seems to have been interposed upon the theory that because compliance with the statutes referred to ought to have .preceded the collection by Stuart Bros, of premiums, there was such illegality attending the collection as to prevent the same from enuring to the company’s benefit. This theory is untenable. Stuart Brothers having acted in collecting the premiums, for the company, the money when paid, was paid for the company’s use, and those agents had no right to retain, or to appropriate the same to their own use. The company’s claim on Stuart Brothers for money so paid them was not infected with illegality. — Story on Agency, § 317; United States Express Co. v. Lucas, 36 Ind. 361. The fact alleged in pleas 11 and 15 that the plaintiff did not pay the tax and procure a license in January, of 1886, does not show it was not entitled to tranSr act the business in and after March of that year when it agreed to- appoint defendant its agent, and, therefore, does not show there was any want or failure of consideration either for defendant’s promise to George) Stuart or his promise to plaintiff. The statutes referred to, in so far as they designate the time for paying the tax, and procuring license, are directory, and though •the prosecution of insurance business at a time not covered by the tax and license would have been within the prohibition, the tax could have been paid, and the license could have been legally issued, at any time later in the year than January. There was error in overruling the demurrer interposed to each of the pleas above designated. The judgment will be reversed and the cause remanded.