Hoadley v. Purifoy

• Court: Supreme Court of Alabama
• Writing for the Court: COLEMAN, J.
• Citation: 18 So. 220,107 Ala. 276
• Parties: HOADLEY ET AL. v. PURIFOY, STATE AUDITOR.
• Decision Date: 25 July 1895

18 So. 220

107 Ala. 276

HOADLEY ET AL. v. PURIFOY, STATE AUDITOR.

Supreme Court of Alabama

July 25, 1895

Appeal from city court of Montgomery; Thomas M. Arrington, Judge.

Petition by Russell H. Hoadley and others for a writ of mandamus to compel John Purifoy, state auditor, to issue to plaintiffs a license to do insurance business in the state. From an order sustaining a demurrer to the petition, plaintiffs appeal. Affirmed.

The appellants are all citizens of New York, doing the business of underwriters under the style of the South & North American Lloyds of the City of New York. On the 14th day of January 1895, and again about the 10th day of March, 1895, they applied to the Honorable John Purifoy, auditor of the state of Alabama, for a license to transact the business of fire inland, and marine insurance in this state. On each occasion they tendered him the sum of $100, and all lawful fees, and filed with him at the same time a written instrument, as required by section 1201 of the Code, appointing an agent for the service of process, and also two sworn statements showing their assets, condition, etc. The appellants, not being a corporation, did not file any "certified copy of the charter," but they did file a statement (Exhibit A) showing how the petitioners were organized or constituted. These several statements were verified by an agent or attorney, petitioners having no president, etc.; and, of course, they do not disclose any "capital stock," "president," etc. As appellants' property is all in cash, the statements do not show the "location and value of real estate, or amounts secured by bonds and mortgages," nor "bonds of this state nor of the United States," etc. This sworn statement, however shows: Cash deposited with the Bank of North America $91,616.40, and gross premiums in process of collection $58,474.72; making an aggregate amount of all the assets of the company, stated at their actual value, of $160,091.12. The same statement shows: Liabilities, $31,625; or a cash capital of $128,466, after paying all outstanding claims,-"the absolute property of the underwriters, free and clear of any lien or claims thereon." These statements show that the receipts of appellants for the past year were $439,064, and the total expenses and disbursements for the same period $271,576.01. The statement which was marked "Exhibit A" to the petition, showing how the petitioners were organized and constituted, was as follows:

"The South and North American Lloyds of the City of New York. Whipple and Company, Attorneys. Know all men by these presents, that we, the undersigned, each for himself, and not one for the other, have made, constituted, and appointed, and do by these presents make, constitute, and appoint, Joseph L Parraga and David F. Casey, of the city of New York, composing the firm of Whipple & Co. or either of them, our true and lawful attorneys, for us, and in our names, place, and stead, to insure any and every description of property and buildings, and any interest therein, wherever situated, and on hulls, cargoes, and freights, against loss and damage by fire and marine, upon such terms and at such rates of premium as shall be fixed by our said attorneys, and for this purpose to receive applications for insurance or reinsurance, and to make the same binding upon us, and to make and issue to any person or persons, firm or firms, corporation or corporations, the proper policy or policies of reinsurance, containing all such terms, clauses, and conditions, warranties and agreements, as our said attorneys shall deem meet, and to subscribe such policies with our names, and the amount insured by us thereon. The policies so issued shall be called the 'Policies of the South and North Lloyds of the City of New York,' and shall be issued in the said city. The said attorneys have power to change or modify the terms of any such policies issued by them, and to annul and cancel the same, and also, at any time, in their discretion, to reinsure any and all risks so taken and insured by us, and in such manner and form, and with such companies or underwriters, as shall be deemed by them most advantageous. All policies so issued upon any one risk, for each of us, respectively, by the said attorneys, shall be for an amount not exceeding the sum of one thousand dollars upon any one risk at any one time. The said attorneys have power to retain in their hands all premiums received by them for each of us, respectively, subject to the control of the finance committee. This power of attorney can only be canceled on the expiration of three years from the date of the first policy issued, unless by the mutual consent of the principal and the said attorneys. The said attorneys have power to adjust and pay out of any moneys or things of value in their hands, belonging to us, any loss or average that may happen under any policy so to be issued by us, and any claim or demand whatsoever which shall arise or accrue to any person or party by, from, or under any policy or agreement which shall be entered into by our said attorneys, in our name or on our account, in pursuance hereof, and, upon such terms and in such manner as they shall deem best, to compound, compromise, and settle any and every such loss, average, claim, and demand whatsoever. And in case of suit being brought, or any proceeding at law or in equity being taken, upon any such policy or agreement, against us, to appear for us, and in our names, to defend the same, and to compromise, adjust, and settle any and all such suits and proceedings. And in the event of any such suit or proceedings being brought or commenced against any other of the persons for whom they so act as attorneys, upon any policy or agreement which shall have been likewise subscribed or entered into by us in virtue hereof, to make and enter into such admissions, agreements, or arrangements with respect to our liabilities thereon, with the parties bringing such suit or proceedings, as shall, in their judgment, be expedient, with a view to preventing a multiplicity of suits and costs. And also to commence and prosecute any and all such proceedings at law and in equity as may, within the judgment of our said attorneys, be necessary and proper for the purpose of collecting and realizing any and all sums of money which may become due to us, for premiums or otherwise, on account of any insurance, agreement, or policy made or entered into by us, by virtue hereof, or for the protection, establishment, or enforcement of any and all our rights in the premises, and, in their discretion, to compound, compromise, settle, withdraw, and discontinue the same. And also to do and perform for us, and in our names, every other act and thing in relation to any insurance or policy made by them by virtue hereof; hereby giving and granting unto our said attorneys full power and authority to do all and every needful and proper act and thing, and in and about the premises above specified, which we could do personally, and ratifying all that they may lawfully do, or cause to be done, by virtue hereof: Provided, always, and the power and authority hereby given and granted to our said attorneys are upon this express condition, that in no event or contingency shall the liability of any underwriter exceed the amount of the subscription by such underwriter on any one risk, and in no event or contingency shall any underwriter be liable for any part of the sum subscribed by any other underwriter, or which shall make us liable or affect us any otherwise than by a several and individual liability, or the amount insured or subscribed by us or in our names. The cost of office rent, printing, stationery, and other incidental expenses, postages, and commissions, shall be covered and paid by the said attorneys; they receiving in payment in lieu thereof 25% commissions on the amount of premiums received, the costs and expenses of litigation excepted. And, in consideration of the premises, we do hereby covenant and agree, to and with the said attorneys, and each of them, and to and with each and every person and party to whom any policy of insurance shall be issued in our name by virtue of this power, or with whom any other agreement shall be made and entered into by our said attorneys in our name by virtue of the power and authority hereby granted, that we will, in all things, fully and faithfully carry out, execute, and fulfill the same, and do and perform everything to which our said attorneys shall by virtue hereof bind us, and pay or cause to be paid over to them, the said attorneys, on demand, any sum or sums of money that may be due by each of us, respectively, upon claims for losses incurred at any time over and above the provisions made herein; having this day, each of us, for himself only,...