Sumrall v. Sun Mutual Insurance

Fagg, Judge, delivered the opinion of the court. The questions for consideration in this case all arise upon the instructions which were asked by the appellant at the trial in the court below and refused. The plaintiff below (respondent here) commenced an action in the St. Louis [30] Court of Common Pleas to recover tlie interest alleged to be due by said company on a subscription to its guaranty fund (so called) make by one Edward Dobyns, the said interest having been assigned to the said Joseph K. Sumrall as averred in the petition. The company was "chartered by an act of the Legislature approved March 14, 1859 ; there was no provision in this act exempting it from alteration, suspension, or repeal, in the discretion of the Legislature, as provided by the general laws concerning corporations — R. C. 1855, p. 571, § 7. On the 16th of January, 1860, an amendatory act was approved providing for a guaranty fund of not less than twenty-five nor more than fifty thousand dollars, to be subscribed in shares of fifty dollars each. The subscribers were required to execute their notes for the amount subscribed, with security therefor, if required by the directors, and to be assessed for the payment of losses in the same manner as premium notes given to said company. In sec. 4 of this act (Sess. Acts of 1859-60, p. 167) it is expressly provided that “parties subscribing shares in such guaranty fund shall be entitled to claim of said company interest not to exceed ten per cent, per annum on the amount of their respective notes, as the directors may determine, which interest shall be payable semi-annually.” The other provisions need not be referred to, as they are not essential to an understanding of the questions presented here. The answer contains several grounds of defence, but it is only necessary to consider the two which have been relied upon here as sufficient to defeat the plaintiff’s recovery. First it is averred that Dobyns had no interest which he could transfer by assignment, and defendant in his first instruction asked the court so to declare the law. The court committed no error in refusing it. For the purpose of considering this point, it may be assumed that there had been an acceptance of the amended charter. He had made his subscription and executed his note for the same in the man [31] ner required by the terms of the act. He had done all that the law imposed upon him, and the obligation of the company to pay him interest upon that amount, at such rate as the board of directors should prescribe, was full and complete. No reason is perceived why such a claim could not be transferred by assignment. It is true that the assignee must take it subject to any claim on the part of the company that would constitute a set-off against it. The existence of any such claim was a fact to be found by the court sitting as a jury. The answer sets up an unpaid assessment made by the directors on the 10th of February, 1863, amounting to the sum of $2,475 on the subscription and note of Dobyns. This suit was instituted on the 14th of March, 1863, and the judgment was obtained on the 5th day of July, 1865. The fact that such an assessment was made seems not to have been denied, but the court disregarded it entirely in making up the amount of the verdict. By the terms of the amended charter, as well as the note of Dobyns itself, it is expressly stipulated that all sums of money paid by the subscribers to this sum upon assessments made should be repaid by the company within sixty days after payment, with ten per cent, interest thereon. So that in reality it is not to be treated as a debt due the company, but a mere obligation to lend it that amount of money, and therefore is not properly the subject of set-off. The fourth instruction assumes that in no event was the plaintiff entitled to interest upon the subscription after the assignment of Dobyns. The proof of the assignment shows that it was expressly stated to be a transfer of all claim to the interest then due, or that should thereafter accrue, and was certainly as effective to pass the one as the other. The second instruction assumes that all of the acts of the directors under the amendatory charter of the company were without authority of law, and should be held to be null and void, because it was not shown that there had ever been an acceptance of it by the members. The third declared [32] that there was no evidence of acceptance whatever, and these may properly be considered together. • Whatever may be said in reference to both of these in* structions, we think they were not warranted by the testimony. This company was organized under the act passed in 1859; and the amendatory act of 1860, as shown by the testimony of the acting president at the date of the commencement of this suit, was drawn up by the attorney, and its passage by the Legislature procured upon the application of at least a portion of the directors. The board of directors authorized the opening of the books of subscription to the guaranty fund provided for by the amendment, at different times after the subscription by Dobyns made assessments thereon, and at various times by the by-laws of the company recognized this subscription by regulating the rate o£ interest to be paid upon the same, and the date at which the .computation should commence. So that, as far as their corporation is concerned, it is completely estopped by the acts of its officers, and the acceptance of the amendment may be legitimately presumed. These corporations enter so largely into the general trade and business o£ the country, and are so .essentially necessary to give security to the capital employed in the great variety of commercial pursuits, that their acts must, to a very great extent, carry with them the same legal presumptions that attach to the acts of individuals. It was said by Judge Story, in delivering the opinion of the court in the case of Bank of U. S. v. Dandridge, 12 Wheat. 64, that, in relation to the question of acceptance of a particular charter by an existing corporation, or by corporators already in the exercise of corporate functions, the acts of the corporate officers are admissible evidence from which the fact of acceptance may be inferred The court below, sitting as a jury, having found for the plaintiff, and judgment being entered accordingly, the same must be affirmed. The other judges concur.