Peter Morrill's Admx. v. Catholic Order of foresters
| Decision Date | 19 January 1907 |
| Citation | 65 A. 526,79 Vt. 479 |
| Parties | PETER MORRILL'S ADMX. v. CATHOLIC ORDER OF FORESTERS |
| Court | Vermont Supreme Court |
October Term, 1906.
GENERAL ASSUMPSIT on a certificate of life insurance, brought under No. 121, Acts 1896. Heard on demurrer to the declaration at the March Term, 1906, Orleans County, Watson J., presiding. Demurrer overruled, pro forma, and declaration adjudged sufficient. The defendant appealed. The certificate in question recited that the "Catholic, Order of Foresters hereby promises and binds itself to pay" $ 1,000 to the beneficiaries therein named.
Pro forma judgment reversed, demurrer sustained declaration adjudged insufficient and judgment for defendant to recover its costs.
Young & Young for the defendant.
Present: ROWELL, C. J., TYLER, MUNSON, WATSON, POWERS, and MILES, JJ.
This action was brought in general assumpsit based upon an endowment certificate or policy of life insurance issued by the defendant to Peter Morrill and payable to his sons, Peter and Joseph Morrill, upon proof of his death and of his compliance with the conditions named in the certificate. The defendant craved oyer of the certificate, which was granted, and, it then demurred to the declaration. The case is here upon exception to the overruling of the demurrer.
The action was brought under No. 121, Acts of 1896, the first section of which reads:
The second section requires the plaintiff to file with the writ a specification giving the number of the policy, the date of the fire, death or accident, as the case may be, and the items of the policy involved in the claim.
1. The first question is whether the suit is properly brought in the name of the administratrix of the intestate. The undertaking was like that in Tripp & Bailey v. Insurance Co., 55 Vt. 100, in that the consideration moved from the intestate and the promise was to him. Here the sons were not promisees but beneficiaries. In Davenport, Admr. v. North-Eastern Mutual Life Association, 47 Vt. 528, the special count alleged that the promise was to the wife and children of the intestate, or their legal representatives, and the court held that no promise to the intestate was to be inferred. Powers v. Insurance Co., 69 Vt. 494, 38 A. 148, was an action upon an insurance policy which provided that in case of loss the amount should be payable to the mortgagee, yet it was held that the action was properly brought by the mortgagor in his name because the consideration moved from him and the promise was made to him, though the insurance was for the benefit of the mortgagee. If it is true, as the defendant contends, that this certificate is a specialty, then only the administratrix could bring the suit as the legal representative of the covenantee, although the covenant was for the benefit of third persons. Fairchild v. Life Association, 51 Vt. 613.
2. The defendant contends that the statute referred to does not apply to contracts under seal, and that if it does, the specification required by it is a sufficient profert of the instrument to entitle the defendant to oyer; that to simplify the pleadings the specification takes the place of a formal profert of the policy, if profert were necessary.
3. The plaintiff contends that the certificate is not a sealed instrument, in a legal sense, and if so, that it is the seal of the officers and not of the corporation. The paper is headed, "High Court Catholic Order of Foresters, Endowment Certificate," and recites that it "is issued to Peter Morrill, a member of St. Anthony Court No. 390, C. O. F.," etc. The final clause is: "IN WITNESS WHEREOF the High Court of the Catholic Order of Foresters has hereunto affixed its seal and caused this Certificate to be signed by its High Chief Ranger and attested and recorded by its High Secretary at Chicago, Ill., this seventh day of July A. D. 1899." It is signed by Thos. H. Cannon, High Chief Ranger, and attested by Theo. B. Thiele, High Secretary, and witnessed. A large, round, gilt wafer, partly covering green ribbons, is attached upon which is stamped the words: "HIGH COURT CATHOLIC ORDER OF FORESTERS, Faith, Hope, Charity." The wafer also bears the emblem of the cross and the date of the organization of the Order.
It is said that the same general principles in respect to seals apply to private and to municipal corporations. Dil. Munic. Cor. 190. A common or corporate seal was at common law the seal of a corporation by which the corporate body manifested its acts as such. 1 Black. Com 471. It was said in Beardsley v. Knight, 4 Vt. 471, that corporations act by their seal, but it is now the rule in this country and in England that a corporation may make a contract without the use of a seal in all cases where this may be done by an individual. Morawetz Private Cor. 338. A corporation may adopt any seal it chooses, for the time, as well as a private person. Bank of Middlebury v. R. R. Co., 30 Vt. 159. It is laid down in 1 Dillon 190, that the...
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