Beeber v. Walton

• Decision Date: 01 April 1887
• Parties: JOHN A. BEEBER, Receiver of the Lycoming Fire Insurance Co., v. EPHRIAM T. WALTON, FRANCIS N. BUCK and CHAS. RICHARDSON, doing business as Walton, Whann & Co
• Court: Delaware Superior Court

32 A. 777

12 Del. 471

JOHN A. BEEBER, Receiver of the Lycoming Fire Insurance Co., v. EPHRIAM T. WALTON, FRANCIS N. BUCK and CHAS. RICHARDSON, doing business as Walton, Whann & Co

Superior Court of Delaware, Kent

April 1, 1887

NARR IN ASSUMPSIT on premium note of defendants to the Company.

Pleas 1, non-assumpsit; 2, payment; 3, release; 4, accord and satisfaction; 5, discount; 6, set off; 7, statute of limitation; 8, That prior to the making of the said assessments on the said premium note &c., &c., the defendants had duly surrendered to the said company their policy of insurance which was duly accepted by it, and thereupon the defendants ceased to be members of the said corporation plaintiff, &c 9, That the said premium note was obtained and procured by the said company from the defendants by means of the fraud, misrepresentation and covin of the said company &c. 10, That the defendants were induced to become, and did become members of the said corporation plaintiff, and to make and deliver the said premium note to the said plaintiff by means of the fraud, misrepresentation and covin of the said plaintiff, &c.

Plaintiff took a non-suit.

Fulton and McCormic and Beeber for plaintiff.

Neilds and Hayes and Massey and Ridgley for defendants.

Fulton offers the charter of the company in evidence.

Massey objects to the admissibility of it, because the printed pamphlet offered while it purports to contain copies of the Acts of Assembly in Pennsylvania concerning the corporation which appear to be properly authenticated, but it also contains what purports to be a copy of certain judicial proceedings in the Court of Common Pleas of Lycoming County in that State to which this corporation was a party which is not authenticated correctly in conformity with the Act of Congress.

McCormic then offered in addition to the foregoing a copy of the record of the judicial proceeding mentioned, duly certified as such in conformity with the Act of Congress as he alleged.

Massey further objected that it appeared that the copy of the record just offered was made out and subscribed by the Recorder of Deeds of Lycoming County, Pa., and not by the Prothonotary or clerk of the said Court of Common Pleas of said county, which was therefore not in conformity with the Act of Congress which requires that it should have been certified under the hand of the Prothonotary and under the seal of that court. It is only by the Act of Congress that this instrument as a copy merely of an original record or of any other instrument of writing can be produced in evidence here in this or in any other case, and the modes prescribed by it must be strictly followed. 95 U.S. 422; 5 Harr., 107.

McCormic. There is no other record of the proceeding had under the Act of Pa. in the Court of Common Pleas of Lycoming County to change the name of the corporation plaintiff, than that which has here been offered, and which is accordingly the sole original record of the proceeding for that purpose in that court, and which is under the law of that State directed by the court to be entered or recorded in the office of the Recorder of Deeds in that county. Rev. Code, Sec. 14, p. 762.

Nields. There is an affidavit filed in this case by the defendants denying the existence of this corporation.

THE COURT overruled the objection and admitted the certified copy of the proceeding offered by the change in the name of the corporation plaintiff. The counsel for the defendants excepted to the ruling, &c.

James M. Bowman testified: Was secretary of the corporation in June, 1872, to June, 1873, and this is the minute book of the company during that time, and is in the hand of the President of it, and was made by him on the 17th of June, 1872, and are minutes of a meeting of it held on that day. It is a copy of the bylaws of it adopted on the report of a committee of the directors on that day. Was secretary of it until 1881.

THE minutes offered in evidence by counsel for the plaintiff. Objected to on the other side because the minutes were not the original report of the by-laws reported by the committee of the directors on that day, and are not admissible without proof of the loss of the original.

THE COURT overruled the objection and admitted the evidence.

John R McFee, Esq., sworn, after which the counsel for the plaintiff produced and offered in evidence the certificate of the Insurance Commissioner of this State that the corporation plaintiffs was duly and lawfully authorized to do and carry on business in this State.

Massey objected to the admissibility of it in evidence, because there is no allegation or averment in the declaration that the corporation had lawful authority to do business in this State, and as it is material to the right of action, not having been alleged, it cannot be proved. Gould's Pl., 174, 175; 1 Ch. Pl., 320. Our statute requires that as corporation of another State it should have such a certificate as is offered in evidence to lawfully do business, and, of course, to make such a contract as this, in this State. 8 Wall., 181; 1 Ch. Pl., 322, 323, 236; 6 T. R., 710; 55 Vt. 522, 532. The other ground of objection is founded on the provisions contained in the act of this State, Del. Laws, Vol. 16, Sec. 5, 29; 3 Harr., 456.

McCormic. The general averment that the company was lawfully engaged in the insurance business was sufficient to admit the evidence, and if not, it should have been demurred to, and not traversed by the plea of the general issue; the averment had reference both to the time and the venue (this county) alleged in the declaration.

Nields. We could not have demurred to the declaration on that ground for the action on this contract was transitory, and non constat that it might have been, and was made between the parties to it in Pa.

Fulton. The case cited from 55 Vt., reports, I take occasion to say, after having made the most thorough search of my life, is the only one to be found to the same effect anywhere, but it was on demurrer, and not on an objection to evidence on the trial of the case before the court and jury. He cited 53 Pa. 353; 8 Kans., 9; 18 Wis. 235; 13 Pet., 536; 1 Harr., 216.

THE COURT, after adverting to the averments in the narr and the statute referred to, sustained the objection and ruled out the evidence offered.

McCormic then asked leave of the court to now amend the declaration by inserting in it the necessary averments.

Massey objected and read the 14th section of the statute of amendments, and contended it was the only provision in the statute under which the application to amend the declaration can be granted during the trial of the case before the jury. He next referred to the provisions of the 11th section of the same statute. 4 Houst., 100; 5 Harr., 381; 4 Harr., 204; 3 Ibd., 75; 4 Houst., 548.

Ridgley, on the same side.

Fulton. The statute of amendments are to be liberally construed. Refers to and reads the provisions of the State Constitution on the subject, and insists that in accordance with the language and spirit of it, the Court ought to allow the amendment now asked for.

McCormic, 2 Black. Com. 407. Reads the 11th Sec. of Statute of Amendments, and contends that the language of it is so broad and comprehensive and general that it cannot be limited or restricted, and was not intended to be by the 14th section of it, and it does not appear that it has ever been so ruled by any court in this State.

Nields replied.

THE Court overruled the objection and granted the motion for leave to amend the declaration.

McCormic then offered and read in evidence the certificate of Insurance Commissioner of this State authorizing the incorporation plaintiff to do business in this State.

Also the three several applications of the defendants for insurance and their three several premium notes to the company, the signatures of the firm to the same and of the signature of the agent of the company to the said applications being mutually assented to by counsel on both sides for the purpose only of dispensing with the production of the formal proof of the genuineness of the said signatures respectively.

Massey objected to the admissibility of them on the ground that it appeared on the face of them from their dates respectively that they antedate the certificate of the Insurance Commissioner of this State to the company just before produced in evidence, and subsequent to the passage of the statute prohibiting foreign insurance companies from doing business in it without such a certificate. 16 Del. Laws, 29; 55 Ill. 86, 89; 80 Pa. 15, 28, Cook & Pierce Case; 2 Houst; 3 Gray, 215, 222; 3 Gray, 500; 55 Ver., 533; 11 Wis. 394, 397, 398; 12 How., 79; 5 Barn & Ald., 335; 13 Pet. 589; 8 Wall. 181.

THEre is nothing in the statute to give any retroactive operation or effect to the certificate of the insurance commissioner to be issued under it to any foreign insurance company.

McCormic in reply cited 109 U.S. 527; 62 Md. 204. Refers to our statute, 16 Del. Laws, 29, Sec. 2. No case has been cited in which such a company had failed to recover in such a case as this in which it had obtained such a certificate as this, and it so appeared in the report of the case. In the case before this court the certificate of the commissioner is in terms broad enough to cover the whole period from the time the statute went into effect (July 1, 1879) to the 30th of Jan., 1880. 60 N. H., 464; 70 Ind. 1.

Fulton. The certificate of the Commissioner of Insurance, who is a public functionary in the administration of the powers and duties of the office, is final and conclusive on every one and cannot be contradicted or disputed here; and that it is retroactive as well as prospective, and by its terms covered the whole period from the...