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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 309 There are no questions open for review, as the case is presented, unless in respect to the regularity of the assessment, and the notice required to be given of it. Indeed, it may be doubted whether the latter question is raised by any proper exception. On the trial, it is true, the receiver proved, under specific objections of the defendants, the publication of a notice of assessment in the Mohawk Valley Register, which is now conceded to have been defective, but which it is claimed was not required by any statute, or by the charter or by-laws of the company. An exception to the introduction of this superfluous piece of evidence (if it is so) can hardly be said to raise the point whether there had been a compliance with the by-laws in the manner of giving notice; and not elsewhere was the point distinctly raised. It may be, however, that if the by-laws prescribed a publication *Page 310 in a newspaper as the only mode of notification of an assessment, and the giving of such notice was a prerequisite to a recovery in the suit, the exception to the refusal to nonsuit would bring the question before us.
1. The referee finds that the receiver of this insolvent company, to whom the defendants gave their premium note, on the 20th of June, 1854, made an assessment on all the premium notes belonging to the company, and assessed the defendants' note to its full amount. He did not, however, find specifically what the losses were that called for the assessment, but referred to certain evidence in the case as all the proof made by the plaintiff on that subject. A ground on which the nonsuit was moved for was, that the proof did not establish, as against the defendants, that any losses had happened, or judgments obtained against the company, which were properly assessable upon the note made by the defendants; and this is now their principal point. I am of the opinion that it is not tenable.
In an action on a note like the present it is undoubtedly incumbent upon the plaintiff to give some evidence of the existence of losses which rendered the assessment proper. He is not required, however, to show the existence of the several fires by which the several insured parties had sustained losses. As was said in Sands, Receiver, v. Kimball, Executor (an unreported case in this court), "evidence which would have concluded the company whilst it was engaged in its proper business," as "a loss and its settlement and allowance, or a judgment recovered against the company, will be sufficient." In People's Mutual InsuranceCompany v. Allen (10 Gray, 297) it was held that the record of losses kept by a mutual insurance company was sufficient primafacie evidence that such losses had occurred in an action to recover an assessment laid upon the members. In this case, a record of losses for which the assessment was made, showing the amount of insurance in each instance, and the sum at which the loss was adjusted, either by the company or the receiver, was produced and proved by a witness who was clerk of the company during the whole period the defendants' policy was *Page 311 in force, and down to the time of the company's dissolution, and who was afterwards the receiver's clerk. This witness stated that, of his own knowledge, the record was made from claims for losses by fire and otherwise against the company, some of which claims were allowed by the company, and the others by the receiver; that it contained a list of losses in the company, and the date of loss, the number of policy, the names and residences of the insured, the amount insured, and the amount paid or adjusted to be paid thereon, by the company or the receiver; that the assessment of the defendants' note was made to pay the losses which accrued within six months from the 22d July, 1852 (the period that the defendants' policy was in force); that he could not specify the particular losses, but that the same appear in the record of losses, which he identifies and annexes to his deposition. By reference to the paper, it is seen that losses accrued and were allowed for the time the defendants' policy was in force, to over the sum of $8,000. Thus it was shown that losses accrued during the life of the defendants' policy, which had been adjusted, and the defendants' note assessed to meet them. It is true, that the witness stated that he could not specify the particular losses that the defendants' note was assessed to pay; but this was unnecessary. It was enough that losses had accrued during the time the defendants were insured, and which had been settled and allowed as claims against the company, and for which their note was liable to contribute, to justify the assessment. The testimony of the witness, in connection with the paper referred to and proved by him, was ample proof of these facts; and it would have been error to have nonsuited for the reason suggested by the defendants' counsel.
2. In respect to notice of the assessment. The company was organized under the general act of April, 1849, which gave no directions as to the form of assessments, and its charter was silent on the subject. That act, however, empowered the companies organized under its provisions to make such by-laws, not inconsistent with the constitution or laws of the State, as might be deemed necessary for the government *Page 312 of its officers and the conduct of its affairs. (Laws of 1849, ch. 308, § 12.) A by-law of the company provided that notice of an assessment "shall be given, either by publishing in one or more newspapers printed in the county where the members reside, three weeks successively, prior to the time fixed for payment, or by giving due notice thereof by an agent of the company, or by mail, addressed to the members thereof, at such post-office as may be indicated by their application, as may be most convenient or likely to give actual notice." In 1853, and subsequently to the adoption of this by-law, in remodeling the general act for incorporating mutual insurance companies, it was provided that "the directors shall, as often as they deem necessary, after receiving notice of any loss or damage by fire sustained by any member, and ascertaining the same, or after the rendition of any judgment against said company for loss or damage, settle and determine the sums to be paid by the several members thereof, as their respective portions of such loss, and publish the same in such manner as they shall see fit, or as the by-laws shall have prescribed." (Laws of 1853, ch. 466, § 13.) The requisites of this statute relate, it may be assumed, to the manner as well as the substance of the assessment, and cannot be disregarded, in either respect, by the directors or the receiver who may succeed them. After making the assessment, the directors shall "publish the same as they shall see fit, or as the by-laws shall have prescribed." It may be conceded, for the purposes of this case, that when the by-laws prescribe a mode, or different modes, of publishing the assessment, the directors, or receiver, have no discretion to adopt any other. The by-laws of the Union Insurance Company directed the assessments to be published in either of three ways, viz.: by inserting a notice thereof in one or more newspapers printed in the county where the members reside, or by giving notice by an agent of the company, or by mail, addressed to the members thereof, at such post-office as may be indicated by their application, as may be most convenient or likely to give actual notice. The receiver pursued the latter mode. The witness Walrath testifies that *Page 313 he aided the receiver in making the assessment, and mailed notice thereof to the premium note makers; that he mailed himself, at Fort Plain, where the receiver resided, a notice of the assessment, directed to the defendants at Fredonia, N.Y., that being their residence, as ascertained from the books of the company. This was all that the plaintiff was required to do, either by the statute or by-laws. The by-laws did not prescribe that notice of assessment should be given only by publishing the same in a newspaper of the county where the member resided. This would have been onerously expensive and impracticable, as the members were scattered throughout the different counties of this and other States. Nor does the phrase of the statute "publish the same" mean that there can be no publication except through the medium of a newspaper. There is, therefore, no objection to the assessment, if the point be deemed raised in the case, on the ground of defectiveness of notice to the defendants.
3. The point was made on the argument that no right of action is given to the company on the assessment, until a personal demand of the same is made of the premium note maker; and there was none in this case. The answer is that there was no such objection urged on the trial. Had it been, it might have been obviated by proof of a personal demand of payment before suit brought.
4. One of the grounds for a nonsuit was that the defendants' note was improperly assessed to pay losses happening to parties who insured for a cash advance premium and received cash policies therefore. The point was not made on the argument; but if it had been, it would have been unavailing. In White, Receiver, v.Havens (20 How. Pr., 177), it was adjudged by this court that the assessment of a premium note maker to pay losses happening to members who insured for a cash advance premium was not objectionable.
The judgment should be affirmed.
All the judges concurring,
Judgment affirmed. *Page 314