Baltimore Fire Insurance v. McGowan

Le Grand, C. J., delivered the opinion of this court. This was, originally, an action of covenant brought by the appellees, on a policy of insurance, issued by the appellants. The policy was dated the 22nd of October 1853, and on a stock of groceries. It was for one year, with the privilege of renewal, so long as the company should continue to receive the premium on the risk.

During the first 3rear the premium was paid for the second year. The loss-took phice on the 9th of December 1854, and the suit was brought by the appellees to recover its amount. The policy was issued to J. McGowan fy Sons. At the time of its issual, the firm of J. McGowan & S'ons was composed of J. McGowan and the appellees.

John McGowan retired from the business and firm, on the 2nd of May 1854, the business being conducted thereafter by the appellees, (William and John O. McGowan,) under the name of John McGo-wan & Sons. ⁵³ At the trial, on the motion of the plaintiffs’ counsel, the court allowed the writ and nar. to be so amended as to change them from covenant to assumpsit. To the allowance of this amendment, the appellants excepted. The record shows, that, after the amendment was made, the jury were sworn “to say the truth in the premises,” between the plaintiffs and the defendants. The Act of lSS^, chapter 177, section 1, is without limitation as to the power of the court to permit amendments to any proceedings, including the writ or summons, so that the case may be tried on its real merits, and the purposes of justice subserved.

It expressly provides, that writs may be amended from one form of action to another, when the ends of justice require it. We do not think the court exceeded its power in granting the application of the plaintiffs. There was much said, both in the evidence and arguments of counsel, in relation to preliminary proof, to the comprehensiveness and meaning of the word “groceries,” and other matters, which need not be commented upon, because, we are of opinion the appellees cannot recover in this action for any loss intended to be insured against by the appellants. The policy underwritten is a sealed instrument.

The company had no authority to issue • any other than a sealed policy. The Kkh section of its charter, the Act of 1807, chapter 68, declares, “that all policies of insurance made by this corporation shall be signed by the president, and attested by the secretary, and sealed with the common seal, and all losses on any such policy or policies shall be adjusted by the president and board of directors, and paid, agreeably to the terms of the policy, out of the funds of the company.” This prohibition, if there were none other, would be a sufficient answer to the plaintiffs right of recovery in this action. In the case of The Penn. & Maryland Steam Navigation Co. vs. Dandridge, 8 Gill & Johnson, 318, the court, adopting the doctrine as laid down in Angelí and Ames on Corporations, observes “that a corporation and an individual stand upon very different footing. The latter, existing for the ⁵⁴ general good of society may do all acts and make all con"tracts which are not, in the eye of the law, inconsistent with the great purpose of his creation; whereas, the former having been created for a specified purpose, cannot only make no contract forbidden by its charter, which is, as it were, the law of its nature, but, in general, can make no contract which is not necessary, either directly or incidentally, to enable it to answer that purpose.” Substantially the same principles was adopted in Albert and wife vs. Savings Bank and others, 2 Md. Rep., 159 .

But, in addition to this, the language of the policy aud of the renewal receipt is a conclusive bar to the plaintiffs recovery. The policy provides