Denver Fire Ins. Co. v. McClelland

• Decision Date: 11 January 1886
• Parties: DENVER FIRE INS. CO. v. McCLELLAND.
• Court: Colorado Supreme Court

9 P. 771

9 Colo. 11

DENVER FIRE INS. CO. v. McCLELLAND.

Supreme Court of Colorado

January 11, 1886

Appeal from district court, Larimer county.

Stallcup, Luthe & Shafroth and Teller & Orahood, for appellant.

Norville & Clark and T. M. Robinson, for appellee.

STONE J.

The sole question in this case is whether the appellant can avail itself of the ultra vires of the contract upon which its liability, if any, arises, as a defense to the action. The complaint of appellee, the plaintiff below, is as follows:

'Plaintiff states that the defendant is a corporation duly organized and incorporated under the laws of the state of Colorado and doing business in Larimer county, in the state of Colorado, as a general fire and hail insurance company.

'Plaintiff, for cause of action, states:

'(1) That on or about the twelfth day of June, 1882, plaintiff was the owner of certain growing crops, situate on the E. 1/2 N.E. 1/4, N. 1/2 S.E. 1/4, sec. 2, township 6, range 69 W., and S.W. 1/4 sec. 35, township 7, range 69 W., in Larimer county, state of Colorado.

'(2) That on said twelfth day of June, 1882, the defendant, in its said capacity of an insurance company, contracted and agreed with plaintiff, for and in consideration of the sum of $61.03, three dollars of which said sum was then and there paid by plaintiff to defendant, and the balance of which said sum, amounting to $58.03, was then and there evidenced by a promissory note made due and payable on the first day of November, 1882, executed and delivered by plaintiff to defendant, and by defendant accepted, to insure the plaintiff in the sum of nineteen hundred and thirty-five dollars against loss or damage to the aforesaid growing crop by reason of injury to or destruction thereof by hail; and did then and there, by its certain policy of insurance dated on the said twelfth day of June, 1882, duly signed by Archie C. Fisk, its president, and R. P. Goddard, its secretary, and countersigned by Jesse Harris, its duly authorized agent, and by defendant delivered to plaintiff, insure plaintiff for the term of one year from the date of said policy against loss or damage to his said growing crops by reason of the destruction thereof, or any injury thereto, that might be caused by hail; and did by the terms and stipulations contained in said policy, and for and in consideration of the said sum of sixty-one dollars and three cents, promise and agree to make good unto the plaintiff all such immediate loss or damage as might occur by reason of hail to the aforesaid growing crops from the said twelfth day of June, 1882, to the twelfth day of June, 1883, in the sum of nineteen hundred and thirty-five dollars, to be paid sixty days after due notice and proof of such loss or damage.

'(3) That said insurance covered and applied to plaintiff's said growing crops as follows, to-wit: On sixty-five acres of wheat not to exceed, in case of loss, $15 per acre, or $975; on six acres of oats not to exceed, in case of loss, $15 per acre, or $90; on 120 acres of wheat not to exceed, in case of loss, $6 per acre, or $720; on one acre of strawberries not to exceed, in case of loss, $150 per acre.

'(4) That by the terms and conditions of said policy of insurance the defendant contracted and agreed that, in the event of injury, loss, or damage to plaintiff's said growing crops, or any part thereof, not amounting to a total destruction thereof, such damage or injury should be appraised by disinterested and competent persons, to be mutually agreed upon by plaintiff and defendant, unless the amount of such damages should be agreed upon between the plaintiff and defendant.

'(5) That on the nineteenth day of June, 1882, plaintiff's said growing crops were injured and damaged by hail to the amount of $1,500, and the plaintiff sustained damage and loss thereby in respect of his said growing crops in the said sum of fifteen hundred dollars.

'(6) That on the nineteenth day of June, 1882, plaintiff gave defendant due notice of plaintiff's said loss and damage.

'(7) That on the twenty-second day of June, 1882, plaintiff rendered to defendant a particular account of said loss and damage, verified by the affidavit of plaintiff.

'(8) That said crops not being totally destroyed by said hail, and the plaintiff and defendant not being able to agree upon the amount of said damages so sustained by plaintiff, the plaintiff and defendant mutually agreed upon W. F. Watrous and Charles Warren, two disinterested and competent persons, as appraisers to assess and appraise the amount of damages and loss so sustained by plaintiff.

'(9) That the said W. F. Watrous and Charles Warren did then and there, on the twenty-second day of June, 1882, appraise the damage and injury to plaintiff's said crops caused by the injury thereto by hail, as aforesaid, at the sum of $1,500, as follows, to-wit: To plaintiff's said sixty-five acres of wheat, hereinbefore mentioned as insured for $975, said appraisers assessed and appraised the damages at the sum of $780; to plaintiff's said six acres of oats, hereinbefore mentioned as insured at and for $90, said appraisers assessed and appraised the damages at $90; to plaintiff's said 120 acres of wheat, hereinbefore mentioned as insured for $720, said appraisers assessed and appraised the damages at $480; and to plaintiff's said one acre of strawberries, hereinbefore mentioned as insured for $150, said appraisers assessed and appraised the damages at $150; which said appraisement represented the true damage and injury done to plaintiff's said growing crops by said hail.

'(10) That said appraisers, on the twenty-second day of June, 1882, made out and delivered to defendant a statement or report in writing, verified by their affidavits, setting out in detail their said appraisement of the damages aforesaid, as herein averred and set forth.

'(11) That more than sixty days have elapsed since the aforesaid notice and proof of plaintiff's loss and damage were received by defendant at its office, and that defendant has wholly failed, neglected, and refused to pay plaintiff the said sum of fifteen hundred dollars, or any part thereof, and has failed and refused to make good or pay plaintiff for his said loss and damage, or any part thereof.

'Wherefore plaintiff prays judgment for $1,500, together with interest and costs of suit, and for general relief.'

The amended answer of the appellant company, the defendant below,----

'Denies that on the nineteenth day of June, 1882, or at any other time, plaintiff's growing crops were injured or damaged by hail to the amount of $1,500, or any other amount, or that plaintiff sustained damage or loss thereby in respect of his growing crops in the said sum of $1,500, or any other sum; denies that the plaintiff and defendant mutually agreed upon W. F. Watrous and Chas. Warren, or either of them, or any other person or persons, as appraisers, to assess or appraise the amount of damage or loss so pretended to be sustained by plaintiff, or that said pretended appraisers acted by any authority whatever, but avers that all and each part of said pretended appraisement, and each and every act of said pretended appraisers in the behalf mentioned in said complaint, were without authority, irregular, illegal, and void. Defendant, for a second and separate defense to the complaint herein, states that it is a corporation duly incorporated under and by virtue of the laws of the state of Colorado, and doing business in the said county of Larimer; * * * that said articles of incorporation have never been amended; that said articles of incorporation were duly filed and recorded in the office of the secretary of state of Colorado, on the twenty-sixth day of August, A. D. 1881, and were duly filed and recorded in the office of the county clerk and recorder, in and for said Larimer county, long before the twelfth day of June, A. D. 1882, and long before the alleged contract between plaintiff and defendant was made. Defendant further states that by virtue of said articles of incorporation neither the said the Denver Fire Insurance Company, its directors, stockholders, or officers, had or have any right, power, or authority to enter into or make any contracts with plaintiff, or any one, by which said company could insure growing crops of any kind against loss or damage by hail; but that all and each of the several acts of the said the Denver Fire Insurance Company, its directors, stockholders, and officers, which are alleged and set forth in the complaint herein in reference to the making of said alleged contract with plaintiff, and to the insurance and making of the alleged policy of insurance to plaintiff, and all other acts with reference to the terms of the said policy, the alleged agreement to arbitrate any loss of plaintiff, and the alleged appointment and finding and appraisement of said alleged arbitrators, are absolutely null and void, each and every act being beyond the scope and power vested by the said articles of incorporation in defendant, its directors, stockholders, and officers. Defendant further states that it is willing to return all that it has received from plaintiff by reason of said alleged policy of insurance, to-wit, $3, and plaintiff's said promissory note for $58.03. Wherefore defendant asks to be discharged, with costs.'

The articles of incorporation are set out in full in the foregoing answer, that portion which is material to the question before us being as follows:

'Know all men by these presents, that we, Archie C. Fisk, Samuel S Griswold, and Frederick Michel, residents of the state of Colorado, have associated ourselves together under the name and style of the Denver Fire Insurance Company, for the purpose of becoming a...