Maine Mutual Marine Insurance v. D. R. Stockwell & Co. , 1877 Me. LEXIS 68 ( 1877 )

Appleton, C. J.

This suit is on a note given for an open policy to the plaintiff corporation for $1001 on twelve months, and dated January 2, 1870.

The plaintiffs were incorporated by an act approved March 16, 1870, c. 170.

The defendants signed the agreement marked A, which is copied in the case of these plaintiffs v. Hodgkins, 66 Maine, at page 111, by which they agreed to advance their notes “ for premiums in advance ” to the amount of one thousand dollars. This they did, giving their note for that sum and taking therefor an open policy.

The premiums upon insurances under their open policy exceeded the amount of the note and they paid the balance. The defendants had thus complied with the agreement to advance their note “for premiums in advance,” and had paid the note so advanced. They were under no obligation to make any further advance of their notes under their agreement. They might do so, but the option was with them.

In February or March, 1871, and after the payment of the note advanced “for premiums in advance,” the defendants gave the note in suit for an open policy. The case is not like that of Howard v. Hinckley & Egery Iron Co., 64 Maine, 93, where the note originally given under § 9 had been simply renewed but not paid. Here the note originally given had been paid, and its payment constituted a part of the funds “for the security of those concerned.”

The rule of law is well settled. The maker of a premium note given to a mutual insurance company for the nominal premium upon an open policy executed to cover such risks as may be after-wards indorsed therein, is liable to the company on such note only to the amount of the actual premiums upon risks assumed by the company and indorsed thereon. Elwell v. Crocker, 4 Bosw. 22.

The note in suit was given long after the plaintiffs had obtained the requisite capital and had commenced business. The defendants gave their notes for an open policy. The issue before the jury was whether the note was given under § 9, “ for premiums in advance,” and for the security of dealers, or whether it was a note given for an ordinary open policy. The testimony was conflicting. The plaintiff’s witness, Howard, and the defendants testified that the note was not given under § 9. Th ere was evidence to the contrary. No exceptions were taken to the rulings of the presiding justice. ¥e must assume that they were satisfactory to the plaintiffs.

The tribunal, upon which the law has imposed the duty of determining controverted facts, has rendered its decision, and the parties must abide by the result. Maine Ins. Co. v. Farrar, 66 Maine, 133.

Motion overruled.

Walton, Dickerson and Virgin, J.T., concurred. Peters, J., having been of counsel, did not sit.