Hope Mut. Fire Ins. Co. v. Beckmann

• Decision Date: 31 October 1870
• Citation: 47 Mo. 93
• Parties: THE HOPE MUTUAL FIRE INSURANCE COMPANY, Respondent, v. HENRY BECKMANN, Appellant.
• Court: Missouri Supreme Court

47 Mo. 93

THE HOPE MUTUAL FIRE INSURANCE COMPANY, Respondent,

v.HENRY BECKMANN, Appellant.

Supreme Court of Missouri.

October Term, 1870.

Appeal from Sixth District Court.

T. Bruere, for appellant.

I. The act of 1864 is a new charter, and no amendment to the act of 1857. Corporations are the creatures of the law; and, without any express declaration in the charter of 1864 that the same shall be an amendment to the act of 1857, no court has a right to presume so from the mere fact that the name of the corporation is the same.

II. The act of 1864 is not binding upon appellant, even if considered as an amendment, unless his express consent is proven, because it materially changes his rights and liabilities. Any essential change in the original plan and purpose of the association releases appellant. (Troy & Rutland R.R. Co. v. Kerr, 17 Barb. 581; New Orleans R.R. Co. v. Harris, 27 Miss. 517; State v. Bailey, 16 Ind. 46.)

III. The note was the foundation of suit, and should have been filed. (Gen. Stat. 1865, ch. 13, p. 701, §§ 9, 12.)

Lewis & Beckington, for respondent.

The second act of incorporation, approved January 26, 1864 (Sess. Acts 1864, p. 347), did not destroy the old corporation nor create a new one. It did not repeal the existing charter, nor does it contain any expression indicating a purpose to extintinguish the existing corporation. It only repeals such acts and parts of acts as may be in conflict with the new law. The existence and continuance of the corporation are expressly recognized by the terms of the enactment; and if this be not a purely amendatory act, it is nothing more than a second or supplemental charter granted to an existing corporation. The company was thenceforth empowered to act under both charters, except in so far as they might conflict with each other, in which case the latter enactment would control. (Sess. Acts 1857, p. 564; Sess. Acts 1864, p. 348; Abb. Dig. & Corp. 175, §§ 254, 256, 258, 260-1; Norris v. Mayor, etc., 1 Swan, Tenn., 164; Johnson v. Crawley, 25 Ga. 316; Sumrall v. Sun. Mut. Ins. Co., 40 Mo. 27.) If, however, it be insisted that the act of 1864 created a wholly new corporation, then there are simply two companies in existence having the same name. The repealing clause in the late charter does not affect anything contained in the former, for that is the charter of a different company, and there can not be any conflict between acts which operate independently of each other and upon totally different objects. The old company is, therefore, still alive under its first charter, and the defendant has no ground upon which to affirm that it is not that company with which he contracted which now sues him. He does not show any violation of the contract made with the original corporation either before or since the act of 1864.

BLISS, Judge, delivered the opinion of the court.

In 1857 the plaintiff was incorporated (Sess. Acts 1856-7, p. 564), and by the terms of the charter all who took out policies were to become members. Defendant was insured in 1859 and gave his premium note, upon which suit is now brought. But in the meantime, to-wit, in January, 1864 (Sess. Acts 1863-4, p. 347), a new charter is obtained, which does not purport in terms to be an amendment of the old one, but has precisely the same title and embodies most of its provisions, with the addition of certain new ones. It provides (§ 1) that “the present directors [naming them] of the Hope Mutual Fire Insurance Company of St. Louis, and all other persons who may hereafter become members of said company in the manner herein prescribed, be and the same are hereby incorporated,” etc. The first charter provides for sixteen directors, and the last for twelve. By the first charter there is but one department; while by the last, separate departments are created for the city and country, and there are some other not very important changes.

The defendant claims that the second charter creates an entirely independent company, which is the present plaintiff; that he gave that company no premium note and is not holden to it; while, on the other hand, counsel for plaintiff contend that the second charter is but an amendment or supplement to the first. Under our present constitution it could not be treated as an amendment, both from defect of title and from want of proper specifications in regard to the act repealed. But under the constitution then in force, if, from the general scope of the act, we find that it was intended as such amendment or supplement, we must so treat it.

It can not be an amendment, says the defendant, or at least such a one as leaves the old corporators in the company, because they are not included in the description of members; and a grammatical construction of the provision above quoted might favor this view and exclude all except the directors and those hereafter to become members. But the phraseology admitting this construction is evidently a blunder of the draughtsman. He must have supposed that the directors, as the trustees of eleemosynary corporations, composed the company, and, by including them, that he embraced all its then members; and the whole provision can not be reconciled with any other view. The phraseology relied upon, by the plainest implication, contradicts the claim that a new corporation was created; for we find that not only are the directors of the existing company to be continued members under the new charter, but all persons who may “hereafter become members of said company in the manner herein prescribed,” etc., referring only to the company already existing. According to the claim, an entirely new charter, creating a new corporation, not only adopts as corporators the present representative men of another corporation, but provides that its new members shall consist...