Washington Mut. Fire Ins. Co. v. St. Mary's Seminary

• Decision Date: 31 March 1873
• Citation: 52 Mo. 480
• Parties: WASHINGTON MUTUAL FIRE INSURANCE COMPANY, Respondent, v. ST. MARY'S SEMINARY, Appellant.
• Court: Missouri Supreme Court

52 Mo. 480

WASHINGTON MUTUAL FIRE INSURANCE COMPANY, Respondent,

v.ST. MARY'S SEMINARY, Appellant.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Circuit Court.

Daniel Dillon, for Appellant.

I. The court erred in admitting the note in evidence, (Wood vs. Goodridge, 6 Cush., 122; Smith vs. Alexander, 31 Mo., 194; Musser vs. Johnson, 42 Mo., 78; McClellan vs. Reynolds, 49 Mo., 314; 1 Pars. Notes & Bills, 92-93, and notes g and h; Moss vs. Livingston, 4 Coms., 208; Taber vs. Cannon, 8 Met., 456; Tucker Man. Co. vs. Fairbanks, 98 Mass., 101; Arnold vs. Sprague, 34 Vt., 402; Titus vs. Kyle, 10 Ohio St., 444; Harkins vs. Edwards, 1 Clarke, (Iowa) 426; Barker vs. Mech. Ins. Co., 3 Wend., 94; Pentz vs. Stanton, 10 Wend., 271; Pumpelly vs. Phelps, 40 N. Y., 59; McClernan vs. Hall, 33 Md., 293.)

II. The court erred in admitting in evidence the policy of insurance. On its face it purported to insure Mr. Daniel McCarty, President of St. Mary's Seminary, reference being had to his application, and in consideration that the assured had become a member of the company and had bound himself, his heirs, executors and administrators, &c., and had executed to plaintiff a note for $750, &c.

( a.) This is expressly and emphatically a contract with Daniel McCarty, and to be permitted to show that it was not a contract with him, but with somebody else, would be to allow evidence to directly contradict the express words of the contract. In addition to the cases already referred to, see: Murphy vs. Price, 48 Mo., 247; Solmes vs. The Rutger F. Ins. Co., 3 Keyes, 416; Williams vs. Christie, 4 Duer., 29; Newcomb vs. Clarke, 1 Denio, 226; Fenley vs. Stewart, 5 Sandford, 101; Tanner vs. Christian, 29 Eng. L. & Eq., 103; Lennard vs. Robinson, 32 Eng. L. & Eq., 127.

( b.) This policy is a contract under seal. No person can be held a party to such a contract unless his name is on the face of it as a party thereto. (Lincoln vs. Crandell, 21 Wend., 101; Evans vs. Wells, 22 Wend., 324; White vs. Skinner, 13 Johnson, 307; Tippetts, vs. Walker, et al., 4 Mass 595; Heffernan vs. Adams, 7 Watts, 121; Mears vs. Morrison, 1 Breese, 172; Sheldon vs. Dunlap, 1 Harrison, (N. Y.,) 245; Simonds vs. Beauchamp, 1 Mo., 591.)

( c.) Besides, if the policy was not under seal, the same rules should be applied to it as to sealed instruments. (Higginson vs. Dall, 13 Mass. 99; Jennings vs. Chen. Co. M. Ins. Co., 2 Denio, 79.)

If the policy did not insure the defendant there was no consideration for the note, and even if the note be held to be the note of the defendant, it was void for want of consideration.

III. The court erred in giving instructing, No. 1, for plaintiff. In the first place, it makes the recognition of its President, the recognition of defendant, without reference to whether or not he had authority to represent defendant in that matter or not.

In the second place there was no evidence to warrant the giving of this instruction. There was no evidence of the payment of any money by any one, except by Burke, and it is not contended that he had any authority to pay the money.

IV. The court erred in giving instruction No. 2, for plaintiff. It simply states an abstract proposition of law without any reference to the evidence in the case and should have been refused. (Huffman vs. Ackley, 34 Mo., 277.)

V. The court erred in giving instruction No. 1, for defendant. There was no evidence tending to prove that Daniel McCarty had any authority from defendant to effect the insurance or make the note.

The authority of a president, cashier or any other officer of a corporation must be proved like the authority of any other agent. (First Nat. Bank &c. vs. Hogan, 47 Mo., 472; The M. Bk. of the city of N. Y. vs. Clements, 3 Bosw., 600; Blood vs. Marcuse, 38 California, 590; McCullough vs. Moss, 5 Denio., 575; Leavitt vs. The Conn. Peat Co. (U. S. C. C. Dist. of Conn.,) 1 Am. Corp. Cases, 113; Angell and Ames on Corp. page 298, (8 Ed.,) Sec., 297; Harwood vs. Humes, 9 Ala., 659; Chitty on Bills 28.)

Besides, if Daniel McCarty had full authority to insure defendant in plaintiff, this of itself would not authorize him to delegate Thomas Burke to effect the insurance. (Story on Agency 13; Chitty on Bills, 32; Emerson vs. The Prov. Hat Man. Co., 12 Mass., 244; Brewster vs. Hobart, 15 Pick., 302; Wilson vs. Y. & M. L. R. R. Co., 11 Gill. & J. 74; Mason vs. Wait, 4 Scammon, (5 Ills.,) 127.)

There was no evidence tending to prove a ratification on the part of defendant, or any evidence tending to prove that any person connected with defendant had knowledge of the existence of this insurance, except McCarty. Here, as all the way through the case, plaintiff makes McCarty and defendant one.

Before any action of McCarty tending to prove a ratification, can be evidence against defendant, it must be shown that he had authority to bind defendant in the matters which are claimed to be acts of ratification. There was no evidence that he had authority to represent defendant in anything.

The payment of the money was made by Burke without any authority and it never was assented to. There being no evidence tending to prove authority to Burke to make the note, and no evidence tending to prove a ratification by defendant, the instruction ought to have been given.

W. H. Horner, for Respondent.

I. The policy in the name of “Daniel McCarthy, President of Saint Mary's Seminary,” is a policy insuring the appellant, and the note and application signed by him as President, are the note and application of appellant. They need no extraneous evidence to show their meaning. If they did, ambiguities may be explained by parol evidence, and the evidence in this case fully sets forth the intention of the parties. (Sherman vs. Fitch, 98 Mass., 59; Haven vs. Adams, 4 Allen, 80; Angell & Ames on Corp, (9th ed., 1871) pp. 293-6-7; §§ 293-4 and citations; Thompson vs. Tioga R. Co., 36 Barb. 79; Bird vs. Daggett, 97 Mass. 495; Sharp vs. Bellis, 61 Penn. State, 59; Nichols vs. Frothingham, 45 Maine, 220; Eastern R. Co. vs. Benedict, 5 Gray 561; Com. Bank vs. French, 21 Pick. 486; Dispatch Line vs. Bellamy Mf. Co. 12 N. H., 205; Mechanics Bank vs. Bank of Columbia, 5 Wheaton 326; Smith vs. Alexander, 31 Mo., 193; Schuetze vs. Bailey, 40 Mo., 69; Musser vs. Johnson, 42 Mo., 74; McClellan vs. Reynolds, 49 Mo. 312.)

II. Upon the face of the policy, note and application they should be construed as the contract of appellant, and any doubt as to their meaning is removed by the circumstances attending their execution. It is admissible to show the intention of the parties by facts surrounding the transaction, and the conduct of the parties; see cases above cited.

III. McCarthy was acting as President openly and under color of office, and there follows from this fact a presumption of a legal holding, and an authority to perform the duties of the office. (State Bank vs. Bell, 5 Black., 127; Union Manufacturing Co. vs. Pilkin, 14 Conn., 174; Ang. & Ames on Corp., (9th Ed.) sec. 282, p. 277; Musser vs. Johnson, 42 Mo. 74.)

Assuming then that President McCarthy was the officer who should represent appellant, the meaning of the instruments offered in evidence, without regard to extrinsic facts as a question raised by appellant in the Court below. In discussing this point, the Courts have laid considerable stress upon what they have termed the official marks appearing upon the face of the contract. In the application, it purports to be make by D. McCarthy, President of St. Mary's Seminary, and it is for insurance upon building owned by appellant, used for religious and educational purposes. The note is attatched to the application, as a part of it, printed upon the same sheet. These are all indications that the Seminary is to receive the benefit of the contract. The application is by the terms of the policy a part of the policy. The note, policy, and application form parts of one entire contract, when they are referred to in the policy. (Gahagan vs. U. M. Ins. Co., 43 N. H., 176; 27 N. H., 157; 38 N. H., 338.)

IV. But under the law as stated above, the facts attending the execution of the contract leave no room for doubt as to the intention of the parties. It was the appellant's property insured; it was the appellant's money paid by Burke, as first payment upon the note; it was the appellant's chief executive officer who authorized in the first instance, and then ratified and adopted the contract. In case of damage by fire, could it be said, looking at the form of these instruments, in the light of all these circumstances, that the appellant could not recover from appellee the amount of appellant's loss?

V. The strict rules of former times requiring seals and other useless formalities no longer prevail, and contracts of corporations are now formed by the express promises of their agents and officers, or implied from their acts, as in case of individuals. (Angell & Ames on Corp. (8th Ed.) Sec., 237, p. 212.)

VI. The rule of law is, that a person for whom another has performed some act, as his agent, shall at once upon knowledge of the facts, either ratify or repudiate the acts of the agent. Silent acquiesence is construed as an adoption, and the principal is not permitted to procrastinate, to partially receive and partially reject the benefits of a contract thus entered into. (Dunlap's Pal. Ag. 324, note; Broom's Legal Maxims, 776; Badger vs. Bank of Com., 26 Maine, 428; Bank of U. S. vs. Dandridge, 12 Wheaton, 64; Finney vs. Fairhaven Ins. Co., 5 Met., 192; Amory vs. Hamilton, 17 Mass., 103; Nesbitt vs. Helser, 49 Mo., 383.)

SHERWOOD, Judge, delivered the opinion of the court.

Action in the St. Louis Circuit Court by the Washington Fire Insurance Company to recover from St. Mary's Seminary a certain sum for assessments made by the former on a premium or deposit note, which the defendant was in the petition charged with having executed. The answer was a general, as well as a very lengthy and specific,...