American Ins. Co. v. Smith

• Citation: 73 Mo. 368
• Parties: AMERICAN INSURANCE COMPANY, Plaintiff in Error, v. SMITH.
• Decision Date: 30 April 1881
• Court: Missouri Supreme Court

73 Mo. 368

AMERICAN INSURANCE COMPANY, Plaintiff in Error,

v.SMITH.

Supreme Court of Missouri.

April Term, 1881.

Appeal from Gasconade Circuit Court.--HON. A. J. SEAY, Judge.

REVERSED.

Louis Hoffman for plaintiff in error.

The burden of proof whether or not plaintiff had a right and the authority to transact business in this State rested upon the defendant. Hamtramck v. Bank, 2 Mo. 169; Starr v. Peck, 1 Hill 270; Howard v. Boorman, 17 Wis. 459; Mut. Ben. Ins. Co. v. Davis, 12 N. Y. 569. In an action by a foreign insurance company, non-compliance with statutes giving such company authority to transact business will not be presumed, but must be set up in defense. May on Ins., § 587. The act of the defendant in executing and delivering the note in controversy to plaintiff raises a prima facie presumption of the authority of plaintiff to transact business. Bayley v. Taber, 5 Mass. 286; 6 Mass. 451. The presumption is in favor of the validity of the instrument. Graham v. O'Fallon, 4 Mo. 601; Clay Fire Ins. Co. v. Huron Salt M'f'g Co., 31 Mich. 346; s. c., 14 Am. Law Reg. (N. S.) 460. Plaintiff is not bound to make affirmative proof of compliance with State laws, because the law refuses to presume the breach of a positive statute or of any legal duty. 1 Phillips on Ev., 604; Starr v. Peck, 1 Hill 270; 1 Greenleaf on Ev., § 40; Starkie on Ev., (9 Ed.) 756; City of St. Louis v. Shields, 62 Mo. 247; Farmers & Merchants' Ins. Co. v. Needles, 52 Mo. 17; American Ins. Co. v. Cutler, 36 Mich. 261.

Belch & Silver for defendant in error.

The act of March 23rd, 1874, (Acts, p. 75,) amending section 27 of Acts of 1869, page 55, expressly requires a certificate from the superintendent authorizing foreign insurance companies to do business in this State. It further provides that every agent in this State shall hold a certified copy of said certificate, and by section 43 of said act of 1869, (p. 60,) a penalty is imposed for violation of the above provision. We think a corporation is as much bound to produce at the trial such authority to sue as it would be to produce proof of its incorporation. The certificate of the superintendent is as essential to the right to sue as proof of the fact that the plaintiff was a corporation. The means of proof are peculiarly in the power of the company and its agents, and the law contemplated their making it.

HOUGH, J.

This was a suit on the following promissory note: $12. For value received, in policy No. 221,534, dated the 12th day of August, 1875, issued by the American Insurance Company of Chicago, Illinois, I promise to pay said company the sum of three dollars and -- cents, on the 1st day of September, 1876, and three dollars and -- cents on the 1st day of September, 1877, and three dollars and -- cents on the 1st day of September, 1878, and three dollars and -- cents on the 1st day of September, 1879, without interest.

THOMAS J. SMITH.

The defendant was a citizen of Gasconade county, Missouri, and the property insured was situated in said county. The plaintiff offered the foregoing note, and the defendant's application for insurance, in evidence, and rested, and the circuit court held that as it was a foreign corporation and had failed to show that it was duly authorized to do business in this State, the note sued on was without consideration and void, and it could not, therefore, recover.

The only question before us is, as to the correctness of this ruling. If the plaintiff had no authority to do business and issue policies in this State, the note in suit was void for want of consideration. Haverhill Ins. Co. v. Prescott, 42 N. H. 547; General Mutual Ins. Co. v. Phillips, 13 Gray 90; McCutcheon v. Rivers, 68 Mo. 122. And the burden of proof is always on the plaintiff to show a consideration. Noxon v. De Wolf, 10 Gray 343; Burnham v. Allen, 1 Gray 496; Powers v. Russell, 13 Pick. 69. But under our statute the production of the note in evidence, where its execution is not denied, makes a prima facie case. R. S., § 663. This matter is set forth in a very clear light by Chief Justice Shaw in Burnham v. Allen, 1 Gray 496. He says: “A promissory note is given ‘for value received;’ this is signed by the maker, and is an admission on his part that value has been received for it, which is a good consideration. ...