The plaintiff is the assignee of one John Hitchins, and the policy upon which the action is brought was made between him and the Bowditch Mutual Insurance Company, created under the laws of the State of Massachusetts. The policy bears date February 15th, 1852, and insures a dwelling house in the city of Troy for $1,000, for the period of five years. The loss occurred on the 25th of August, 1854. On the 10th of February, 1852, the legislature of Massachusetts passed an act by which the members of the Bowditch Mutual Fire Insurance Company, the Essex Mutual Fire Insurance Company and the members of the Lawrence Mutual Insurance Company were made a corporation, by the name of the Hamilton Mutual Insurance Company, for the term of twenty-eight years, for the purposes of insuring dwelling houses and other property against loss by fire, subject to the Revised Statutes and all subsequent acts in regard to mutual fire insurance companies. It was also provided that the three insurance companies should continue to exist as corporations for the term of two years from the passage of the act, and that the act should not affect the legal rights of any person. It was also provided that before the new act should take effect, it should be accepted by the members of the existing corporations respectively, at meetings *Page 428 called for that purpose. The referee found as a fact that there was no evidence to show that Hitchins was present at or took any part in the proceedings of the meeting at which the Bowditch company accepted the act to incorporate the Hamilton company, nor to show that he gave any express or implied assent to become a member of the Hamilton company, except the presentation of his claim for the loss by the destruction of the insured premises. The absence of any proof of this kind is decisive against the plaintiff's claim, for it shows there was neither contract nor privity of any kind between the plaintiff's assignor and the defendant. Had the new company been created upon condition that it assumed the obligations and liabilities of the old corporations, then its acceptance of the act of incorporation would have created an obligation to make good the loss. The act, however, imposes no such duty, but by the provision declaring the act should not affect the legal rights of any person, intended to recognize and preserve the rights of the members of the three old companies unimpaired, who declined to become members of the Hamilton company. The insured are members of the company where the insurance is effected, and Hitchins could not become a member of the Hamilton company without some plain and unequivocal act, signifying such an intention, and taking upon himself the responsibilities thereof. The referee employs no inconsiderable part of his argument in support of his decision, to show what was the real purpose and intention of the Massachusetts legislature in the passage of the act to incorporate the Hamilton company. Much of this argument is beside the question in controversy, for there are some things it could not do, however resolute and determined its purpose, and one of them is to make Hitchins a member of the new corporation without his consent, or impair the obligation of his contract of insurance with the Bowditch company. I concur with Mr. Justice HOGOBOOM in the dissenting opinion, delivered in the court below, and think the judgment should be reversed and a new trial ordered, with costs to abide the event.
All the judges concurring, judgment reversed. *Page 429