President & Directors of the Firemen's Insurance v. Floss

Alvey, C. J., delivered the opinion of the Court. The two appeals, though in separate records, by and •against the same parties, were argued together, and they will be considered together, as the records in both cases present substantially the same state of facts, and upon which the same questions were raised in the Court below. The plaintiffs below, the appellees here, constituting a partnership under the name of S. W. Eloss & Co., composed of Simon W. Eloss, Henry M. Adler and Benjamin ■Cohen, and being the holders of' two policies of fire insurance, issued by the defendants, the present appellants, sued the latter in two several actions of assumpsit, upon two several renewal receipts; by which receipts, as it is alleged, new contracts of insurance were made, subject ⁴¹⁰ to the same terms and conditions as the original contracts-of insurance stated in the policies. Both policies were issued under the corporate seal of the defendants, but the renewal receipts for premiums paid were not under seal.

The first policy, No. 49,730, was issued on the 16th of April, 1877; and the second, No. 51,716, was issued on the 15th of April, 1878. The policies were each for an insurance of $2,500 on a stock of goods for one year. Other policies in other companies were held on the same stock of goods at the time of the fire, which occurred on the 30th of April, 1886; the aggregate amount of all the insurance being about $75,000. The total amount of loss, according to estimate, was $98,265.58.

Notice and preliminary proofs of loss were furnished by the plaintiffs to the defendants on the 8th of May, 1886. The defendants refused payment, and the plaintiffs brought these actions. The' cases were tried on pleas of “never promised as-alleged,” “never indebted as alleged,” and some others,, alleging fraud, and failure to furnish legal preliminary proofs of loss, such as required by the conditions of the-policies. On the trial, the policies, with the several annual renewal receipts attached thereto, were read in evidence.

The-last of such receipts attached to policjrNo. 49,730, is dated April 16th, 1886, and the last attached to policy No. 51,716, is dated April 21st, 1886. It was then admitted that, at the date of the policies, the firm of S. W. Floss- & Company consisted of 8. W. Floss and Henry M. Adler, and that it was not until the 13th of January, 1882, that Benjamin Cohen became a member of the firm, and that-he has continued a member ever since. The preliminary proofs of loss, furnished by the plaintiffs, were called for by them, and put in evidence.

In both cases, at the close of the evidence, the defendants submitted two propositions for instruction to the jury: 1st. That there was no sufficient evidence of any contract ⁴¹¹ "between the defendants and the plaintiff, Benjamin Cohen, as one of the members of the firm of S. W. Floss and Company, to entitle the plaintiffs to maintain the action,, and that the verdict should he for the defendants: 2nd. That there was no sufficient evidence that the conditions of the policy, in respect to preliminary proofs of loss, were complied with before the institution of the suit, or that the defendants had waived the right to object to such non-compliance. 1. Policy No. 49,730 contains a covenant of the defendants for the payment of the amount insured, if the loss or damage insured against was sustained within the term of one year from the date of the policy, which would expire at noon on the 16th of April, 1878; and the defendants further covenanted, promised and agreed, to and with the assured, their executors, administrators and assigns, “that this insurance shall continue and he in force from the expiration of the time before mentioned for its duration, so long as the said assured, or their assigns, shall continue to pay the like premium, as hath been paid for this insurance, and so long as this corporation shall agree to accept and actually receive the same from the assured, or their assigns; provided, that a premium for a continuance of the insurance shall be actually paid by the assured, or their assigns, to this corporation, before the day limited for the termination of the risk, and such payment endorsed on this policy, or a receipt therefor given by this corporation.” The insurance was regularly continued, by the annual payments of such premiums as the defendants thought proper to demand, and renewal receipts were given as required by the policy.

All the receipts are in the same form, and the last given reads thus: “ Baltimore, April 16, 1886. Renewal receipt for policy No. 49, 730. Subject to conditions therein. ⁴¹² Received $15 from 8. W. Floss & Oo., being the premium ou twenty-five hundred dollars', on mdse, (as per policy) situate at 318 W. Bal to.

St., insured by the Firemen’s Insurance Company, which is hereby continued in force, and will terminate at 12 o’clock noon, on the 16th day of April, 1887.” This receipt was regularly signed by the clerk of the company, though not under seal. It is an established principle, that where the action is by several plaintiffs, they must prove either an express -contract by the defendants with them all, or the joint interest of all in the subject of the suit. If the contract be with a partnership, it must appear that all who sue were partners at the time of making the contract; for one who has be'en subsequently admitted as a partner cannot join in the action, though it were agreed, as between the partners themselves, that he should become equally interested with the others in all the existing property and rights of the firm; unless, after the accession of the incoming partner, there has been a new and binding promise to pay to the firm as newly constituted. Wilsford, et al. vs. Wood, 1 Esp., 182, 183; Ord, et al. vs. Portal, 3 Camp., 340, note; Ege vs. Kyle, 2 Watts, 222 ; McGregor vs. Cleveland, 5 Wend., 475 ; 2 Greenl.

Ev.,sec. 478. And this principle applies with great strictness where the contract is by specialty; for no one can be joined in an action thereon as plaintiff who is not a party thereto, or the representative of such party. The question, therefore, is, whether the policy No. 49,730, executed by the defendants under seal, and to which Cohen was not a party, constitutes the contract of insurance, existing at the time of the loss? or whether the last payment of premium, and the renewal receipt, constitute a new contract of insurance not under seal, and to which Cohen was a party, with reference to the previous policy for the purpose only of making such new contract subject to the terms and conditions set out in such policy? If the policy has been ⁴¹³ continued, or attempted to be continued, as the subsisting contract of insurance, Coben, not being a party thereto, could not be joined in the action, as co-plaintiff; nor could assumpsit be maintained by the partnership, as it existed at the date of the policy, for the loss sustained.

And looking to the terms of the covenant in the policy, ’ providing for the continuance or extension of the original contract of insurance, and keeping the policy in force, we are of opinion that this action cannot be sustained. This case, so far as the right to maintain the action is concerned, is not distinguishable from the case of Balto. Fire Ins. Co. vs. McGowan, 16 Md., 47 .

In that case, the policy under seal was for one year from its date, and contained a precisely similar covenant for the continuance in force of the insurance, from the expiration of that time, as that contained in policy No. 49,130, which we have recited. The renewal receipt was also in substantially the same terms as the renewal receipts attached to the policy here. There, at the date of the policy, the firm of J. McGowan & Sons consisted of three persons, and at the date of the renewal receipt it consisted of only two, one of the members having in the meantime retired, and it was held by this Court, that the renewal receipt, taken under the covenant in the policy, was not a parol new contract of insurance with the remaining members' of the firm, upon which an action of assumpsit could be brought; but that the covenant in the policy contemplated the continuance or extension of the contract of insurance from year to year, as a specialty, and not as a . parol new contract of insurance, to be evidenced by the renewal receipt; and therefore an action of assumpsit could not be maintained. That is exactly the case here, with the difference only, that, in McGowan’s Case, a member of the firm had retired without change in the name of the firm, while in this case, before the last renewal, there had been an accession of a new member,