
    *Southern Mutual Insurance Company v. Taylor.
    January Term, 1880,
    Richmond.
    Absent Bums, J.
    
    Mutual Fire Insurance — Failure to Pay Assessment — Effect on Policy. — T insured his house and a piano in the county of Franklin for $2,200 in the Southern Mutual Insurance Company of .Richmond. He paid the cash premium on the insurance, $44, and gave his premium note for $110. • By one condition of the policy, and also in his application' for the insurance, it is provided, that in case of loss or damage by fire or lightning, if any assessment on the premium note of the assured shall remain unpaid and past due at the time of such loss or damage, the policy should be void and of no effect. One assessment of $27.50 had been made upon T’s premium note, which T had paid. A second assessment of the same amount was made, of which he received notice, but neglected to pay it until his house was consumed by fire. He then offered to pay the assessment, but the company refused to receive it. Upon the evidence — Heed: The assessment was properly made by the directors of the company, and T having failed to pay it before the house was burned, the policy is void.
    This is a writ of error to a judgment of the circuit court of Franklin county, rendered on the 15th day of April, 1876, in favor of the defendant in error, James S. Taylor, _ who was plaintiff in the court below, against the plaintiff in error! The Southern Mutual Insurance Company, which was defendant in the court below, for the sum of twenty-two hundred dollars, with interest thereon from the 7th day of January, *1875. until payment, and his costs by him about his suit in that behalf expended.
    The said suit was an action brought by the said Taylor against the said company, on a policy of insurance of which a copy is referred to in, and filed with, the declaration in said suit; the commencement of which said policy is in the words and figures following, to-wit:
    “No. 5,014. _ $2,200.
    _ “By this policy of insurance, the Southern Mutual Insurance Company of Richmond, Virginia, in consideration of forty-four dollars, to them paid by the assured hereinafter named, the receipt whereof is hereby acknowledged, and a premium note of one hundred and ten dollars by the said company received, do insure James S. Taylor, of Franklin county and State of Virginia, against loss or damage by fire and lightning, to the amount of $3,200, on the following property, to-wit: his two-storied framed dwelling house, 46x18, with north extension, 28x18, situated in said county, ?J/2 miles southeast from Gogginsville, on Blackwater river — amount insured,. $2,000 “Piano therein, amount insured,.... 200
    “Total amount insured.$2,200
    “For a more particular description and as forming part of this policy, by which the insured will be bound, reference being had to application and description. No. 5,014, on file in the office of this company.”
    Then follows the residue of the said policy which need not be here set out, except one clause thereof which is in these words: “No insurance whether original _*or continued, shall be considered as binding until the actual payment of the cash premium; but when a note is given for the cash premium, it shall be considered a payment: provided the note is paid when due. And it is expressly stipulated and agreed by and between the parties, that in case of loss or damage by fire or lightning to the property herein insured, and the note given for the cash premium or any part thereof, or any assessment or assessments on the premium note of the assured shall remain unpaid and past due at the time of such loss or damage, this policy shall be void and of no effect. But the avoiding of this policy by the non-payment of the notes and assessments as above mentioned, shall not have the effect of releasing the assured from any of his obligations; and upon the payment of all claims as above specified, before any loss or damage shall have occurred to the property insured, then this policy to revive and be of full force and effect.”
    Then follow the conditions of insurance, referred to in the body of the said policy, but which need not be here inserted.
    At March rules, 1875, the defendant demurred to the declaration, and plead the general issue to the action, and the plaintiff joined in the demurrer and in the general issue.
    In April, 1875, the demurrer was overruled, and the issue was tried by a jury, which not being able to agree, a. juror was withdrawn and the case was continued.
    In November, 1875, the issue was again tried by a jury, when the defendant filed a demurrer to the plaintiffs evidence, which is set out in the record, but need not be here repeated, at least in full.
    The first evidence so set out is the policy of insurance aforesaid, including the provision aforesaid, which *makes void the policy in the event that “the note given for the cash premium or any part thereof, or any assessment or assessments on the premium note of the assured shall remain unpaid and past due at the time of such loss or damage, this policy shall be void and of no effect. But the avoiding of this policy by the non-payments of the notes and assessments as above mentioned, shall not have the effect of releasing the assured from any of his obligations; and upon the payment of all claims as above specified before any loss or damage shall have occurred to the property insured, then this policy to revive and be of full force and effect.”
    The next evidence so set out is the testimony of the plaintiff Taylor himself, which need not be here repeated in full. In his testimony he set out his application for the policy which application concluded with these words:
    “And the said applicant covenants and agrees with said company that the foregoing together with the diagram hereupon, is a just, full and true exposition of all the facts and circumstances in regard to the condition, situation, value and risk of the property insured. And it is hereby agreed by and between the parties that in case of the loss or damage by fire or lightning to the property herein insured, and the note given for the cash premium or any part thereof, or any assessment or assessments on the premium note of the assured, shall remain unpaid and past due at the time of such loss or damage, this policy shall be void and of no effect. But the voiding of my policy by the non-payment of the notes and assessments as above mentioned, shall not have the effect of releasing me from any of my obligation; and upon the payment *of all claims as above specified be-for any loss or damage shall have occurred to the property insured, then my policy to revive and be of full force and effect.
    “(Signed). Jas. S. Taylor,
    “Applicant.”
    At the foot of his said application is a copy of the deposit note given by the applicant, which is in these words:
    “$110.
    “For value received in policy No. 5.014, dated the 1st day of March, 1871, issued by the Southern Mutual Insurance Co., I promise to pay the said company the sum of one hundred and ten dollars, in such portions and at such time or times as the directors of said company may, agreeably to the charter and by-laws of said company, require, to pay the expenses and losses. And I hereby waive the homestead exemption as to this obligation.
    “(Signed) Jas. S. Taylor,
    “Applicant.
    “P. O. address: Gogginsville, Franklin county.”
    The said witness, after setting out in his testimony the said note, then says: “I then paid the cash premium, I think $44. A demand was afterwards made against me by the defendant of an assessment on this premium note, which I paid. The amount of another assessment was afterwards demanded of me. I received notice of this last mentioned demand through the mail.
    “The notice I here produce in evidence, which is as follows:
    
      *“W. C. Carringfon, President, &c.
    “Office of Southern Mutual Insurance Co’y,
    “No. 11 Main street,
    “Richmond, Va., May 25, 1874.
    “To Jas. S. Taylor, Gogginsville:
    “In accordance with the resolutions appended, you are requested and required to remit to this office $27.50, net amount levied by second assessment on your deposit note, No. 5,014, given for policy of same number for $100. Please remit by check, draft, postal order, registered letter, or express, prepaid, and receipt therefor will be forwarded to you.
    “At a meeting of the directors, held October 10, 1873, it was resolved, that — whereas the losses and expenses of the company absolutely required, not only the levying of another assessment, but the advancement of that levied January 15th, 1872, &c., it was ordered that the , first assessment be extended to policies 18 months old, instead of waiting until they were 30 months old, notice of which 1st assessment has been sent you 60 days since.
    “Resolved, That a 2d and further assessment of 25 per cent, net (of the original amount of the note)' be made on all deposit notes now in force, and that the demand be made at once, on all such notes at have been running 18 months, and hereafter on all others, as they severally reach that age: provided, that the demand for the 2d assessment shall, in no case be made on any deposit note sooner than sixty days after the demand for the first assessment.
    “Resolved, That any policy-holder, by returning his script and paying in cash 60 per cent, of his deposit note, may have it can-celled, and his policy continued in force until the end of its term: provided, that the policy-holders who have paid one or both assessments may *have their notes cancelled by paying 60 per cent, less amount so paid in cash by assessment.
    “Thus you will see, wliile the necessities of the company have forced an assessment to meet demands and enable the company to be in position to meet your loss or others, if they should occur, yet it has been -so prosperous, that by above resolution you are given what.is equivalent to a 40 per cent, dividend on your deposit note, and your risk carried without further cost for the full term. This is equal to a saving to you of about 40 per cent, from stock rates, and has given you, without interest, the use of that much money, which, to a stock company you would have had to pay in advance.
    “Your attention is hereby called to the following provisions of the charter and conditions of your policy:
    “Sec. 5 of charter. If any member (mutual policy-holder, shall fail to pay any assessment for the term of 30 days after a written or printed notice shall have been mailed to his, her or their address, the company may bring suit and recover the whole amount of such premium note or notes, and the company shall retain the same until 30 days after their policy may have expired that was issued on account of said note or notes; and the amount that is not consumed in the payment of expenses and losses, shall be refunded to the parties entitled to the same.
    “Sec. 6. Every policy issued by said company shall, of itself, create a lien on the real and personal property of the party whose property is insured by such policy, for the payment of all premium and cash notes given for the same.
    “Condition of policy. And it is hereby expressly stipulated and agreed by and between the parties, that in case of loss or damages by fire or lightening to the property hereby insured, the note given for the cash *premium, or any part thereof, or any assessment or assessments on the premium note of the assured, shall remain unpaid and past due -at the time of such loss or damage, this policy shall be void and of no effect. But the avoiding of this policy by the.non-payment of the notes and assessments as above mentioned, shall not have the effect of releasing the assured from any of his obligations; and upon the payment of all claims as above specified, before any loss or damage shall have occurred to the property insured, then this policy to revive and be of full force and effect.
    “To avoid the penalties above set forth, you are advised and requested to remit, at once, the amount required of you. No agent is authorized to collect any assessment except on receipt signed by the secretary.
    “Very respectfully,
    “J. E. Neiswanger, Sec’y.
    “I received it by due course of mail. More than thirty days elapsed after I received the notice before my house was burned. I never did pay the amount of this assessment. I did not offer to pay it at any time within 30 days after I received the notice of the assessment. I notified the defendant that my house was destroyed, by letter, the same week in which my house was burned. Mr. G. H. T. Greer wrote the letter for me. The letter, now shown in evidence to the jury, is in the words and figures .following, to-wit:
    “Franklin Bank, Rocky Mount, Va., “July 8, 1874.
    “Southern Mutual Insurance Co., Richmond, Va.:
    “Dear Sir:
    “At request of Mr. James S. Taylor, I enclosed check on Planters Nat. bank for $30 to pay *assessment on his policy. In doing so I have to say that Mr. Taylor’s house was burned on the 5th inst.; but I hope that the payment of the amount of assessment, even at this time, will be all right, as the company loses nothing thereby, as it had the payment of the premium perfectly assured, and by the payment of the amount above, it gets all it could have gotten. Mr. Taylor’s failure to pay sooner, was pure negligence, as he is a man of property, but engrossed in farming, forgot to pay. He does not know the exact amount of the assessment, but I suppose the $30 will be enough.
    “Please answer as soon as possible.
    “Very resp’y,
    “G. H. T. Greer, Cas.”
    
      The witness here states that he made proof of his claim for loss and sent it to the defendant, and exhibited to the jury a paper showing such loss, which is set out in his deposition, but need not be here inserted.
    On his re-examination he states that “the defendant never made any objection to the notice of loss or proof of loss sent to it, nor to the time when it was sent. I believe from the papers I have seen of the defendant, that the assessment was not made to pay for expenses and losses of the defendant. I am able and willing to pa,y any proper assessment on the deposit note held by the defendant.”
    On his cross-examination he makes the following among other statements: “This company is a banding together of citizens for mutual protection, by which perfect security is guaranteed, and no money is required when losses are sustained above the bare expenses of the company. The reasons for insuring by the mutual plan, and in this company, may be briefly summed up: The insured retain the control of their own money, *and are required to pay no assessment on their notes, except when actual losses render it necessary.”
    He exhibited a printed pamphlet to the jury in which, among other things not material to be here repeated, the following statement is made concerning the “Plan of business and resources of the Southern Mutual Insurance Company:
    “This company, chartered by the Commonwealth of Virginia, insures property against loss or damage by fire or lightning, and does business on the mutual and joint stock plan. Policies are issued for a term not to exceed five years. Every person insuring on the mutual plan becomes a member of the company, is entitled to vote at elections for directors, has access to the books of the company, and pays only what is absolutely necessary to keep him insured, and thus saves what is paid to stockholders in the way of dividends, &c., when insured on the stock plan. Each person insuring on the mutual plan, before obtaining his policy, is required - to deposit with the company his deposit note and pay a certain amount in cash. This deposit note is not negotiable, but merely assessable when, at any time during the life of applicant’s policy, the cash means of the company are inadequate for the payment of its liabilities. So long as the company is enabled to discharge its liabilities, nothing will or can be collected on its notes, and they will be returned to the insured at the expiration of their policies, together with their proportionate share of the surplus cash earnings then in the hands of the company, determined by the amount of cash each has paid in virtue of his policy.”
    The testimony of the plaintiff as a witness, after embracing some other matters not material to be noticed here, was then closed, when H. G. Davidson was examined as a witness in behalf of the plaintiff, having been summoned under a subpeena duces tecum ^describing him “secretary of the Southern Mutual Insurance Company of Richmond, Virginia,” and commanding him to bring to court with him such books of accounts or other writings of the said company, or exact copies of such parts thereof as show the financial condition of said company on the fOth day of October, 1873, and particularly all the assets of said company, and in what they consisted, and all the liabilities of said company, how they arose and to whom due; also all such books of account or other writings of said company, or exact copies of such parts of such books and writings as show the financial condition of said company on the 15th day of January, 1872, and particularly all the assets of said company and in what they consisted, and all the liabilities of said company, how they arose, and to whom due; and also all books of accounts or other writings, or such parts or exact copies thereof as show the amount of losses and expenses of every kind paid by said company for the year ending the 10th day of October, 1873, to whom due and in what amount such losses were paid, and to whom and for what and in what sums such losses were paid; all of the said books and writings now remaining with the said Davidson, as it is said, then and there to testify in behalf of said Taylor in a certain matter of controversy in the said court depending between the said Taylor, plaintiff, and the said company, defendant.
    The said Davidson being sworn said, among other things: “I was formerly president of the defendant corporation and am now a director in the corporation, superintendent of agencies and one of the executive committee of the corporation,” &c. “William C. Carrington is the president of the company. I think he was elected president the 8th of October, 1873.” “I have no books or papers of the company to show its financial condition on the 10th of October, 1873. A ^subpoena duces tecum was served on me as the secretary of the company, to produce certain books and papers of the company. I am not the secretary of the company. I did not bring any such books or papers.”
    On his cross-examination he said: “It would have required a wagon to transport these books from the railroad here, and would have' required an expert to have explained them. The books called for in the subpeena duces tecum would have filled an immense goods box. The withdrawal of these books from the office of the company would have caused a suspension of its business during their absence. I presume it would have taken all the clerks the company had, several weeks or longer, to make the extracts from the books called for by the subpoena. That is the reason I did not bring these books or make the extracts. ‘The term cash premiums,’ referred to in the card spoken of as one of the papers issued by the company, embraces all premiums in cash or in notes, or still in hands of agents not paid over. I do not know what is the usual proportion of cash and cash premium notes. The policy-holders usually avail themselves of the privilege of giving notes for the cash premiums. I have here the minute book of the board of directors of the defendant com-paay. On the 10th day of October, 1873, the following entry was made in the minute book,” and is read in evidence to the jury as fellows:
    “Office Southern Mutual Insurance Co.,
    “Richmond, October 10, 1873.
    “Board met pursuant to adjournment. Present: W. C. Carrington, president; H. G. Davidson, J. H. Martin, J. G. Cabell, Dr. H. McGuire and the secretary. The president and secretary reported upon a plan of assessment, which was adopted. On motion *it was ordered that an assessment to net 25 per cent., be made on all policies over 18 months old.”
    On the 7th day of February, 1874. the following entry was made in the minute book, and was read to the jury as follows:
    “Office Southern Mutual Ins. Co.,
    “Feb’y 7, 1874, Richmond, Va.
    “At a call meeting of the board of directors of the company, were present: W. C. Carrington, president; and Jordan H. Martin, Dr. J. G. Cabell, Dr. Hunter McGuire, Dr. H. G. Davidson, and the secretary.
    “On motion, it was ordered that so much of the minutes of the meeting of the board, held October 10, 1873, as relates to the manner of assessments, be so altered and amended as to read and be entered nunc pro tanc, as follows:
    “Whereas the losses and expenses of the company absolutely require, not only the levying of another assessment, but also the advancement of that levied January 15th 1872; and whereas it is desirable and right to make the burdens of the company bear equally on all mutual policy-holders; therefore,
    “Resolved, That the assessment levied Jan’y 15, 1872, be so altered and amended as to make the demand therefor at once on all deposit notes that have been running 18 months, and hereafter on all others as they severally reach that age. (The second resolution need not be inserted here.)
    “3rd Resolved, That a second and further assessment of 25 per cent, net be made on all deposit notes now in force, and that the demand for this assessment be made at once on all such notes as have been running 18 months, and hereafter on all others as they reach that *age: provided, that the. demand for the second assessment shall in no case be made on any deposit note sooner than sixty days after the demand of the first assessment.
    “4th Resolved, That any policy-holder by returning his script and paying on cash 60 per cent, of his deposit note, may have it cancelled and his policy continued in force till the end of its term: provided, that policy-holders who have paid one or both assessments, may have their notes cancelled by paying in 60 per cent, less amount so paid in cash by assessment.”
    The proceedings of the meetings of the directors in which these entries are made are signed by W. C. Carrington, president, and J. E- Neiswanger, secretary.
    The plaintiff paid the amount of the first assessment on his deposit note on October 9, 1873.
    The testimony of H. G. Davidson - was here closed’. After which several other witnesses testified in behalf of the plaintiff, but their testimony need not be stated here.
    Then the defendant introduced as evidence to the jury:
    1st. The charter of the said defendant (the Southern Mutual Insurance Company).
    2d. The deposition of Roger W. Stegar, a clerk in the office of the Southern Mutual Insurance Company, who -made the following statement: “There was an assessment made on said Taylor’s deposit note prior to the 25th day of May, 1874, and on said day I gave notice of this assessment to said Taylor, by depositing the notice in the post office at Richmond, Va., in an envelope properly stamped, addressed to said James S. Taylor, Gogginsville, Va. This was the second assessment made on this note, the first one having been paid. I append hereto a blank copy of the notice which was *properly dated and filled up and sent to him as I have stated.”
    And this being all the evidence, the defendant demurred to the same and the plaintiff joined in the said demurrer; whereupon the jury found the following verdict: “That if the court shall be of opinion that the law is for the plaintiff upon the demurrer to the evidence, then we find for the plaintiff antm assess his damages at $2,200, with interest thereon from the 7th day of January, 1875, until payment; and if the court shall be of opinion that the law arising upon the demurrer to the evidence is for the defendant, then we find for the' defendant.”
    On the 17th day of November, 1875, the court, not being advised of its judgment to be given on the said verdict, took time until the next term to consider thereof.
    At the next term, to-wit: on the 15 day of April, 1876, the court rendered judgment on the said verdict in favor of the plaintiff. To the said judgment, on the petition of the defendant, a writ of error and supersedeas was awarded by a judge of this court.
    Harrison, Burnell and Meredith, for the appellants.
    D. P. Strouse, for the appellee.
    
      
      He had been counsel in the cause in the circuit
    
   MONCURE, P..

delivered the opinion of the court. Afterstatingthecaseheproceeded:

The only question of controversy in this case is, whether the policy is void by reason of the failure of the insured to pay the amount of the second and last assessment on his premium note; as required by the board of directors, of the company?

*There is no question whatever but that, by the express terms of the policy, it was stipulated and agreed by and between the parties thereto, that in case of loss or damage by fire or lighting to the property therein insured, and the note given for the cash premium or any part thereof, or any assessment or assessments on the premium note of the assured shall remain unpaid and past due at the time of such loss or damage, the said policy shall be void and of no effect; and that, by the express language of the application on which said policy was issued, which said application was subscribed by the plaintiff, James S. Taylor, the applicant, it was agreed by and between the parties, that in case of loss or damage by fire or lightning to the said property, and the note given for the cash premium or any part thereof, or any assessment as aforesaid shall remain unpaid and past due at the time of such loss or damage, the said policy shall be void and of no effect.

Nor is there any question whatever but that, by a resolution of the board of directors of said company held October 10th, 1873, it was, among other things, resolved, that a second and further assessment of twenty-five per cent, was made on the said plaintiff’s deposit note of one hundred and ten dollars; that on the 25th day of May, 1874, a letter was addressed and sent by the secretary of said company to the said plaintiff, James S. Taylor, at Gogginsville, enclosing a copy of the said resolution and other proceedings of the said board, the commencement of which letter was in these words: “In accordance with the resolutions appended, you are requested and required to remit to this office (of Southern Mutual Insurance Comp’y, No. 11, Main street, Richmond, Va.,) $27.50. net amount levied by second assessment on your deposit note. No. 5014, given for policy of same number for $110. Please remit *by check, draft, postal order, registered letter or express, prepaid, and receipt therefor will be forwarded to you;” in which letter also were included these words: “your attention is hereby called to the following provisions of the charier and conditions of your policy: then followed copies of sections 5 and 6 of the charter, and that condition of the policy which declares as aforesaid that, “it is hereby expressly stipulated and agreed by and between the parties,_ that in case of loss or damages by fire or lightning to the property hereby insured, and the note given for the cash premium or any part thereof, or any assessment or assessments on the premium note of the assured, shall remain unpaid and past due at the time of such loss or damage, this policy shall be void and of no effect;” and the conclusion of which letter was in these words: “to avoid the penalties above set forth you are advised and requested to remit at once the amount required of you. No agent is authorized to collect any assessment except on receipt signed by the secretary.”

Nor is there any question but that the said letter was duly received by the said Taylor, and that he did not comply with the request therein contained; his testimony before the jury on that subject being in these words: “I received it (the letter aforesaid) by due course of mail. More than 30 days elapsed after I received the notice before my house was burned. I never did pay the amount of this assssment. I did not offer to pay it at any time within thirty days after I received the notice of the assessment.”

Nor is there any question but that the said Taylor was fully informed that it was the duty of the board of directors to make assessments on the deposit notes of the insured to meet the expenses and losses of the company; that two such assessments had been so made on the said note of the said Taylor, one of which ^assessments had been actually paid by him, and the other had never been objected to by him before the institution of this suit; but on the contrary he had always before that time assented to its binding obligation on him, and been willing to pay it; a letter having been written at his request, on the 8th day of July, 1874, by G. H. T. Greer, cashier of the Rranklin ; bank, Rocky Mount, Va., to the Southern ' Mutual Insurance Company, Richmond, Va., which letter was read in evidence to the jury on the trial of this cause, and is in the words and figures following, to wit:

“Dear Sir:
“At request of Mr. James S. Taylor, I enclose check on Planter’s Nat. Bank for $30, to pay assessment on his policy. In doing so, I have to say that Mr. Taylor’s house was burned on the 5th instant, but I hope that the payment of the amount of assessment, even at this time, will be all right, as the company loses nothing thereby, as it had the payment of the premiums perfectly assured, and by the payment of the amount above, it gets all it could have gotten. Mr. Taylor’s failure to pay sooner, was pure negligence, as he is a man of property, but engrossed in farming forgot to pay. He does not know the exact amount of the assessment, but I suppose the $30 will be enough. Please answer as soon as possible.
“Very resp’y,
G. H. T. Greer. Cas.”

The company refused to receive the money thus sent to it, and insisted that the said policy had become void and of no effect by the default of the said Taylor in complying with its terms and conditions, and refused to pay to him the amount of the insurance or any part ^thereof. He therefore brought this action to recover the same.

The case was tried upon the general issue. There was a demurrer to the evidence by the defendant, in which the plaintiff joined. The jury found a conditional verdict, in the usual form in such cases; and the court rendered judgment thereon in favor of the plaintiff, for the amount of the insurance with interest and costs.

Is there any error or not in that judgment? Whether there be or not depends upon whether the second assessment of twenty-five per centum, made by the board of directors on the plaintiff’s premium note of one hundred and ten dollars, in the payment of which assessment default was made by him, was made by the said board fraudulently or not; or with or without power to make it; and whether the fact so appears in the record?

If it appear in the record that the said assessment was made by the said board fraudulently, or without power to make it, then there is no error in the judgment, and it must be affirmed. But if it do not so appear, then there is error in the said judgment, and the same must be reversed.

The court is of opinion that it does not so appear, and therefore that the judgment must be reversed and. judgment rendered for the defendant upon the demurrer and evidence.

There is not a particle of evidence in the record tending to show that there was any fraud on the part of the said board of directors or any of them in-making the said assessment. The board which made it consisted, of W. C. Carrington, president, and Dr. H. G. Davidson, J. H. Martin, Dr. J. G. Cabell, Dr. Hunter McGuire, and the secretary. ' They constituted the board on the l'Oth day of October, 1873, when the. said *se'cond assessment was originally made; and also on the 7th day of February, 1874, when the order previously made on the subject was altered and amended. If it be proper for us to speak from our personal knowledge of the character of these gentlemen, we might express the opinion that they were incapable of acting fraudulently as members of the said board. Nor does it appear from the record that the said assessment was improperly made, or made when there was no occasion therefor, in the execution of the purposes for which the said company was chartered and organized.

The company was a “Mutual Insurance' Company,” composed of the insured themselves, each one of whom was a member of the company. The directors are the representatives of the members of the company, being elected by them. The presumption therefore is, in the absence of evidence to the contrary, that the acts of the board of directors are free from any just ground of objection.

The property in this case was insured for the sum of $3,300; two thousand being forthe building and two hundred for the piano. The .judgment recovered was for the whole sum, with interest and costs. The insurance was on the 1st day of March, 1871, and for five years therefrom. The insured understood perfectly the charter of the company and the terms of the pqlicy of insurance and the conditions thereto annexed. He made no objection to any of them, but elected to have his property insured by that company, and thus to become a member of it. The consideration of the insurance was. the payment of a policy fee of $3.50, and a cash premium of $44, and the execution and delivery of a deposit note for $110, which was subject to the assessments of the board of directors to meet the losses and expenses; any surplus of which that *might remain at the expiration of the term of the insurance was to be returned to the insured. One assessment was after-wards made and paid, being 25 per centum of the deposit note, amounting to $27.50. Another assessment of the same amount was afterwards made by the board, of directors, of which due notice was given to the assured, who made not the slightest objection thereto, but failed' to pay it in due time, though he was warned in writing by the secretary of the company at the time of making the demand, of the consequences of default. After setting forth all the particulars of the demand in the body of his letter, the secretary thus concludes it: “To avoid the penalties above set forth, you are advised and requested to remit at once the amount required of you,” &c. .Notwithstanding which he failed to remit it, and even failed to make any reply, written or oral, to the demand. Had he complied with the request and paid the second assessment, his whole payments on account of the insurance would together have amounted to about one hundred dollars; in consideration of which he would at once have received the whole amount insured, two thousand two hundred dollars. After the loss of the property insured, he offered to pay the amount of the second assessment, and in the letter of Mr. Greer enclosing a check for the money, he said: “Mr. Taylor’s failure to pay sooner was pure negligence, as he is a man of property, but engrossed in farming forgot to pay.” The compan3r refused then to accept the payment and insisted that the policy had, by its express terms, become void and of no effect, by the failure of the insured to pay in due time.

The present suit was therefore then brought by the insured against the company; and was brought not in the city of Richmond where the company was located, and where all their books were, and where they transacted *all their business, but in the distant county of Franklin, the place of residence of the insured, in which by law, the action could be brought. In that action the assured, for the first time, raised the objection that the assessment was not duly made; that there was no occasion for it to raise the means for payment of the losses and expenses of the company; and raised it under the general issue. He might at any time, if he had any doubt about the correctness of the assessment, have called at the office of the company in Richmond, examined their books and papers, and satisfied himself therefrom, and from explanation, if necessary, by the officers of the company, of the correctness of the assessment. But he failed to do so; and the company could not of course carry all their books and papers from Richmond to Franklin county, and produce them on the trial, with somebody to explain them — and all this for the purpose of showing their right to the amount of the second asse.ss.ment of $37.50. There were two trials of the case. On the first there was a hung jury — on the second there was a verdict for the plaintiff; or rather a special verdict, on which judgment was ultimately rendered for the plaintiff, arid that is the judgment to which the writ of error in this case was awarded.

A great many books and cases were referred to by the learned counsel in the'argument of the case before this court, which or most of which we have examined; but we do not deem it necessary to notice them in detail in this opinion. There are few or no cases on the subject in this court, and those decided by the courts of other States, are generally affected, more or less, by the legislation of the States in which they occurred. It is perhaps enough to say on this subject, that we have seen no case which can be considered as authority in conflict with the foregoing opinion, or any *part thereof. We are therefore for reversing the judgment of the court below, as before stated.

ANDERSON, J., was not prepared to concur in or dissent from the opinion of Moncure. P.

The judgment was as follows:

This day came again the parties by their counsel, and the court having maturely considered the transcript of the record of the judgment aforesaid, and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the said judgment is erroneous. Therefore it is considered that the same be reversed and annulled, and that the plaintiff in error recover against the defendant in error its costs by it expended in the prosecution of its super-sedeas aforesaid here; and this court proceeding- to give such judgment as the said circuit court ought to have given, is further of opinion that the law arising upon the plaintiff’s demurrer to the defendant’s evidence is for the plaintiff, and that the said evidence is not sufficient in law to maintain the issue joined on the part of the defendant. Therefore it is further considered that the defendant take nothing by his bill; that the plaintiff go thereof without day and recover against the defendant in error (the plaintiff in the court below) its costs by it. about its defence in the said circuit court expended.

Judgment reversed.  