[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 423
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 424 In any aspect of the case, there are but two questions in it of importance: 1st. Are the defendants liable to Hitchins of his assignee, for the loss; and, 2d. If so, was the policy vitiated by altering and repairing the building in 1852. Both questions arise, should the defendants be adjudged liable; but if the first be determined adversely to the plaintiff, the other need not be considered.
To maintain his action the plaintiff is bound to show a contract of insurance subsisting, at the time of the loss, between Hitchins, his assignee, and the defendants. None existed, unless by the mere force and operation of the statute incorporating the defendants, the contract made with the Bowditch Mutual Insurance Company was transferred to the defendants, so as to substitute the latter, without any assent of the contracting parties, in the place of the original insurers; an exercise of legislative power, in my judgment, *Page 425 that would have been wholly indefensible. But such was not the intent or effect of the statute referred to. Its purpose was to create a new corporation, to be constituted and made up, in the first instance, of the members of the Bowditch company and two others therein specified. The new corporation was made subject to the general laws of the State of Massachusetts regulating mutual fire insurance companies; and it was expressly provided that the act "shall not affect the legal rights of any person," nor "take effect until it shall be accepted by the members of said corporations (the Bowditch company and the two others named) respectively, at meetings called for that purpose." This is the whole of the enactment, except that it was provided that the three companies proposed to be made into one by the act, should respectively continue to exist as corporations for the term of two years, for the purpose of closing their affairs. There is nothing in its provisions indicating an intention to affect or impair the rights of parties under subsisting contracts with the companies proposed to be consolidated, nor, without their consent, to transfer such contracts to the new organization. Had the statute thus attempted to affect individual rights, it would to that extent have been void. But nothing of the kind is indicated. On the contrary, it is expressly provided that "this act shall not affect the legal rights of any person."
As has been stated, the purpose contemplated by the statute was the creation of a new corporation, to be constituted, in the first instance, of the members of the preeumlxisting companies, and to that end it authorized the transfer of the policies of the latter companies to the new one. But a member of one of the old companies, who did not expressly assent to the act, was not by the mere force thereof constituted a member of the new organization. None of the members of the old companies could become members of the new one until they were insured therein, and they could not be insured there without their consent, for such insurance involved new and different liabilities. To create any contract with the new corporation, it was therefore necessary that the *Page 426 policies of the old companies should be transferred to the new, making a new party to the contract, and discharging the old one, and it was also necessary to make the members of the old companies members of the new one. No such result was effected, so far as Hitchins, the plaintiff's assignee, was concerned. His contract was with the Bowditch Mutual Insurance Company, and his rights under it could not in any way be impaired without his consent. He had the right to stand upon it, and insist that no change should be made without his assent in the parties, or in its terms or conditions. By the express terms of the act incorporating the defendants, this right was saved to him, for it was not "to affect the legal rights of any person." He never assented to a change of his relations, or to the discharge of one contracting party and the substitution of a new one, or to the transfer of his contract to the defendants. Neither by his own consent or otherwise did he ever become a member of the defendants' company. He was not a member by virtue of the act of the 10th of February, 1852, and its acceptance by the Bowditch company, and up to the time the loss occurred, he had done nothing, by act or declaration, evincing his willingness or intention to become such member, nor in any way consented to accept the defendants as his insurers. He could not then have been sued by the defendants for premiums or assessments, simply for the reason that there was no contract subsisting between them. (Hamilton Insurance Company v. Hobart, 2 Gray, 543.) If there were none, of course there was no obligation on the part of the defendants to respond for the loss, or any right of action in Hitchins, or his assignee.
My conclusion is that the plaintiff was not entitled to recover for the loss against the defendants. There never was any contract of insurance between his assignor and them. Hitchins never became a member of the defendants' company, and has no claim against it. There is certainly nothing in the point that the defendants are estopped from controverting his membership. It is true that the claim was rejected by them, upon other grounds than that Hitchins *Page 427 was not a member of the company, or rather in stating objections to it this was not enumerated; but there is nothing in the case showing that he would have acted differently if the objection had been made, or that he has lost anything by the omission to state it. The essential elements of an estoppel are wanting.
Having reached the conclusion that the plaintiff had no cause of action against the defendants, it is unnecessary to examine the question whether the alterations made in the building insured were of such a character as vitiated the policy of the Bowditch company within the fourteenth article of the by-laws.
The judgment of the Supreme Court should be reversed and a new trial ordered.