Insurance Co. v. Whipple , 61 N.H. 61 ( 1881 )

The statute forbids the issuance of policies of insurance by companies chartered by other states, unless such companies have been authorized and their agents licensed by the insurance commissioner of this state, and a penalty of not exceeding $2,000 is imposed on any company issuing policies without such authority and on its officers, and a penalty of $100 is incurred by any person who shall, without such license, solicit or receive any risk or application for insurance, or receive money or value therefor; but any policy issued on an application thus procured shall bind the company. G. L., c. 174, s. 3. The defendant contends that the plaintiffs having no authority to do business in this state, and Cutting having no license to solicit or receive any risk or application, this action must fail, although there was a binding contract upon the plaintiffs. The policy of insurance was binding on them, and insured the defendant's property; and it is one of the essentials of a valid contract that there should be a consideration. The consideration in this case was the defendant's note; and it must be regarded as valid, or this class of contracts furnishes an exception to the general rule. We see no evidence of a legislative intention to release the insured from his part of the contract.

In Haverhill Ins. Co. v. Prescott, 42 N.H. 547, the contract of insurance being invalid, the note was without consideration. This is the express ground of the decision in that case. It was made in 1861; and in June, 1862, it was enacted that any insurance extension or renewal of insurance made by any company shall be valid against them, though the agent shall not be commissioned, or his commission recorded (Laws of 1862, c. 2,627, s. 2); and in 1870 (Laws of 1870, c. 1) the statute was modified and left in substantially its present form. On this view it is immaterial whether the contract was made here or in Vermont. Union Ins. Co. v. Smart, 60 N.H. 458. The defendant objects that the assessment was improperly made because made upon the face of the note, there having been payments upon it. The referee has found that this method was according to the charter, and that the assessment was made in the same way on all the notes in the same class with the note in suit, and that it was proportional. The finding of the referee disposes of this objection.

Exceptions overruled.

ALLEN and SMITH, JJ., did not sit; the others concurred.