Swing v. White River Lumber Co.

• Decision Date: 26 November 1895
• Citation: 65 N.W. 174,91 Wis. 517
• Parties: SWING v. WHITE RIVER LUMBER CO.
• Court: Wisconsin Supreme Court

91 Wis. 517

65 N.W. 174

SWING

v.WHITE RIVER LUMBER CO.

Supreme Court of Wisconsin.

Nov. 26, 1895.

Appeal from circuit court, Bayfield county; John K. Parish, Judge.

Action by James B. Swing, trustee of the Union Mutual Fire Insurance Company, against White River Lumber Company, on a premium note. From an order striking out a demurrer to the complaint, defendant appeals. Reversed.

This action was brought to recover an assessment on a premium note given by the defendant to the Union Mutual Fire Insurance Company, a corporation created under the laws of the state of Ohio, and authorized to transact a fire insurance business on the plan of mutual insurance, and to accept premium notes from the insured, to be paid at such times and in such sums as the directors might require for the payment of losses and expenses happening during the term of insurance, and whereby each person insured became a member of the company during that period, and bound to pay for losses and expenses in proportion to the original amount of his premium note. It is alleged in the complaint that the company complied with the laws of Wisconsin, and became authorized to transact the business of a mutual fire insurance company from January 1, 1889, until December 18, 1890, and in the meantime, October 1, 1889, issued a policy to the defendant on certain property in Wisconsin for $5,000, taking therefor its premium note for $500, the terms of which were set out. During the life of the policy an assessment of $200 was made on the note, which was paid. On the 18th day of December, 1890, the supreme court of the state of Ohio, in an action against the said insurance company, on the relation of the attorney general, rendered a judgment ousting and excluding it from being a corporation, and from further exercising or using the franchises, privileges, or powers thereof, and “by its said judgment duly appointed the plaintiff herein trustee of the creditors of said Union Mutual Fire Insurance Company so dissolved as aforesaid,” and it was alleged that thereafter the plaintiff “duly qualified as such trustee in accordance with the requirements of the said judgment, and entered upon the discharge of his duties as such, and had been ever since December 18, 1890, and still was, such trustee as aforesaid”; that the defendant's policy was canceled by the plaintiff; and on the 16th of June, 1891, he filed in said supreme court a report of the assets and liabilities of the company, and showing the necessity of assessing its premium notes up to the full amount unpaid thereon, whereupon the court, by its order duly made and entered of record, ordered and required the plaintiff to make an assessment upon its deposit notes and contingent liabilities due said company sufficient to meet its actual liabilities and reasonable expenses of winding up its affairs. It was alleged that plaintiff then held, and still holds, as a part of the assets of said company, the note against the defendant, upon which there remained $300 of its face amount unpaid, and that on the 24th of June, 1891, the plaintiff duly levied an assessment upon all the premium notes held by him as trustee equal to the amount of the same not previously assessed, up to their face value, being $300 on the defendant's note; and that he duly notified the defendant of such assessment; and that said sum, with interest from the date of the assessment, was due, and had not been paid. The defendant...