dissenting: Finding myself unable to agree with my brethren in tbis case, I think it proper to fully state tbe reason why I differ with them. I admit that tbis is not tbe same case as was here at tbe last term, as some new evidence bas been added, and tbe same question is not presented as to tbe competency of Miss Lucy Ragsdale’s letter, which we commented upon before and for tbe admission of which tbe new trial was ordered. But I do not think what is supposed to be new evidence in tbe sense that it tends to establish tbe liability of tbe defendant to answer for tbe debts or obligations of tbe other society, which bas been banished from tbe State, growing out of its insurance contracts— should bave tbe least significance in tbe case, as it does not tend to prove any material facts upon which such liability can be based. What was said or done by tbe agent at Charlotte was not competent to fix tbe defendant with such liability, for it does not appear that lie bad any authority from it to act in tbe premises, and, besides, it does not tend to prove anything that is material. Tbe subpoena duces tecum was issued to C. B. Bailey, who represented tbe Royal Benefit Society — whose license to do business in tbe State bad been revoked, and which bad insured Sarah C. Morgan — and wbo also represented tbe defendant.. Tbe book *83be produced contained tbe entry “Sarab Morgan, policy No. 28343,” whereas, her policy number in tbe Eoyal Benefit Society was 58343. Sarab 0. Morgan died a month before tbe defendant, tbe Eoyal Fraternal Association, began to insure. Tbe latter society was conducted on tbe lodge plan and was authorized to do business only in that way. This required an application to be made for membership, and a medical examination before entrance, and if satisfactory and tbe application was approved, a policy of insurance then issued.
Sarab C. Morgan never bad a policy in this defendant company, nor was she a member of tbe order. It was impossible for her to have been such, as she was dead when it received its first application for membership. It would interfere very seriously with tbe proper and lawful exercise of its franchise if tbe defendant should be permitted to do business in tbe way suggested by tbe plaintiff. Tbe essence and entire scope of its plan and its contemplated methods of business are opposed to any such conduct on its part. There is absolutely nothing to charge it with liability save tbe loose and unauthorized statements of third parties, which fall within tbe category of the rankest hearsay. It appears that it did no insurance business until 1 August, 1910, when its first policy was written. The brief of plaintiff admits that it was forbidden by tbe State Insurance Commissioner, Mr. James E. Young, to conduct business in any other way than by issuing new policies: so, therefore, it appears from this fact that it would have been contrary to law for it to guarantee the payment of policies issued by other companies, and surely it would be a violation of its chartered privileges. There is nothing whatever in this case to create an estoppel. The defendant received none of the assets of the other society as a trust fund to pay its liabilities, and Mrs. Morgan did not change her position to her detriment by reason of anything done by the defendant, which would be necessary to raise any kind of estoppel. 29 Cye., 49. The charter of the defendant entered into and formed a part of any contract of insurance made by it (29 Cyc., 69), even if there had been any dealings between Mrs. Morgan and defendant, and she was bound to take notice of its powers and privileges and the limit of its authority to contract. But defendant had no dealings with her, and the whole contention of the plaintiff can rest only upon the fact that the agent of the Eoyal Benefit Society happened also to be the agent of the defendant, but this is fully explained (if it could possibly have any such legal effect as to form a contract), by the statement that he was collecting for the former company in the winding up of its business preparatory to its withdrawal from the State, under the order of the commissioner, and did not collect anything for defendant except on its own business, which consisted entirely of new insurance. The court took this view of the matter and ordered a nonsuit, which I *84■flunk was a correct ruling, as the evidence is as far from making out a case against defendant as it could possibly be.
Surely the defendant cannot be bound, in law, by the acts, conduct or declaration of a third party having not the semblance of authority to act in its behalf. The acts and statements of a person, even one professing to be an agent, are not competent to establish his agency for another. This must be done independently before his acts can bind the alleged principal, and there is nothing more in this case than such acts or declarations, if there is any evidence to show even such a state of facts. It would be dangerous in the extreme to permit such evidence to gc> to a jury as tending to establish an agency, or an authority to bind another, and especially a defendant, like this one, which has only special and limited powers under its charter of a very peculiar nature. The devotion of its funds to a purpose not contemplated by its charter would seriously interfere with the orderly and regular transaction of its legitimate business. Besides, a promise or undertaking to pay or guarantee the debt of another must be in writing unless where the party to be charged has received funds to pay the same and, therefore, holds as a trustee, or is bound because of a promise implied from the fact of having received the fund. The judgment, in my opinion, should be affirmed. .
Justice BbowN concurs in this dissenting opinion.