Gleason v. Canterbury Mutual Fire Insurance , 73 N.H. 583 ( 1906 )

The by-laws are not a part of the policy contract. The plaintiff in his application agreed to be bound by the by-laws annexed to his policy. No by-laws were annexed to or printed upon the policy. The policy that was issued was of the New Hampshire standard form. It contained a clause stating that if "any special provisions or stipulations not inserted [in that form of policy] . . . require mention in effecting insurance, such provisions or stipulations shall be legibly written or printed, and permanently and securely attached to [the] . . . policy, and signed separately by the company or agent." The policy therefore is not only the best evidence, but under the above stipulation is the only evidence, of the insurance contract, and the by-laws cannot be used to contradict, vary, or enlarge its terms. Gerrish v. Insurance Co., 55 N.H. 355, 358.

A notice under section 6, chapter 170, Public Statutes, is sufficient if it is in writing and informs the insurer of a loss or damage by fire under the policy, without more particularly specifying the property lost or damaged. Rix v. Insurance Co., 20 N.H. 198, 204. And it would seem that the lists of personal property, which were furnished to the defendants at their request, were sufficient notice under the statute of a loss under the policy. But if this is not so, the trial justice was warranted in finding that the defendants waived their right to object that the notice of the loss of the buildings was not in writing; for they knew of the destruction of the buildings before the expiration of thirty days from the time of the fire, and within that time entered upon an adjustment of the loss and paid to the plaintiff $250 on account thereof. Perry v. Insurance Co.,67 N.H. 291, 296; Westlake v. Insurance Co., 14 Barb. 206, 207; 2 May Ins., s. 464.

The sworn statement or proof of loss provided for in the standard form of policy cannot be regarded as a condition precedent to the insured's rights to sue upon the contract. Chapter 170 of the Public Statutes is by law, and in this instance was by express stipulation, made a part of the contract. By section 7 of that chapter, the company is required to adjust a loss within fifteen days of the receipt of the notice called for by section 6; and by section 9, the insured is given a right to commence an action upon the contract if the company neglects to adjust a loss within fifteen days after receiving notice of it. If the proof of loss were a condition precedent to the insured's right to sue upon the contract, it would be in conflict with sections 7 and 9, and therefore void under section 18. Franklin v. Insurance Co., 70 N.H. 251.

The directors who participated in the meetings of November 16 and December 8 were de facto, if not de jure, officers. They entered into office under color of an election, and during their term of office performed the duties of directors without objection. If their elections were irregular, they were voidable only — not void; and their acts, while in the possession of their offices, were the acts of the defendants and binding upon them. Nashua Insurance Co. v. Moore, 55 N.H. 48, 54; Hughes v. Parker, 20 N.H. 58, 72; Despatch Line v. Bellamy Co., 12 N.H. 205, 222. Therefore the votes passed at the meetings of November 16 and December 8, 1904, are legal votes of the company.

As the by-laws are not a part of the policy contract, the other questions raised in relation to them are not considered. The plaintiff is entitled to judgment for $950.

Exceptions overruled.

All concurred.