Scottish Commercial Insurance v. Plummer

Svmonds, J.

The bond, dated August 10,1874, on which this *543 action of debt is brought, was given by the defendants for the fidelity of one of them as the plaintiffs’ agent, and for the prompt payment by him of all premiums and other mon eys collected by him for insurance.

It contains a stipulation that the laws of New York are to control in determining the liabilities of the obligors, as if the bond had been made in that state. This stipulation, however, ceases to be of any practical value in deciding the case, from the fact that in the agreed statement on which it is submitted no points of difference are shown between the laws of Maine and of New York as to the legal effect of such an obligation. In its construction, therefore, the court must proceed according to the laws of this state, of which judicial notice is taken. McKenzie v. Wardwell, 61 Maine, 136.

The period during which the appointment of the agent, and the liability of the obligors for his fidelity, should continue, was not stated in the bond. Such a position is not an office for which there is a stated term of service, nor is any legal limitation shown, at which the agency was to cease, or expire, without a new appointment. The bond, therefore, was for the faithfulness of the agent, while he should continue to act in that capacity, till he should resign, or his authority be revoked, or till some, act was done, or proceeding had, by which the obligors were relieved from further liability for his conduct. There is nothing to indicate that an annual appointment was expected or required.

The case shows that when the bond was delivered, the defendant, Plummer, was the duly appointed agent of the,, plaintiff company, and so continued till September 5, 1877. It does not state that he was ever re-appointed after giving the bond, but contains the negative statement that there was no appointment or re-appointment either on or after August 10, 1875.

Between August 10, 1876, and August 1, 1877, the agent collected moneys of the company amounting to $180.38, which were demanded of him on September 5, 1877, but have never been paid ; and for the payment of them the security of his bond, is sought in this action.

The period of the defendants’ liability not being limited by the *544 terms of the bond — otherwise than by the duration of the agency —nor by anything in the nature of the position held by the agent, and the default having occurred diming the time within which he was the duly appointed agent of the company, it would seem the plaintiffs were in position to claim resort to their remedy upon the bond.

But it is against our laws — R. S., c. 49, §§ 49, 50 — for a foreign insurance company to do business, or for a person to act as agent of such company, in this state, without procuring an annual license therefor ; and the agreed statement shows nothing about a license for the company or for the agent.

The effect of this, it is claimed, is two-fold.

I. That the requirement of an annual license reduces the agency to an annual tenure and that the bond, therefore, by implication covers only the first year, and expires with it.

II. That if this limitation does not defeat the obligation as to the default in 1876 and 1877, still, as no license is shown, the bond appears to have been given for an illegal purpose, to secure the plaintiffs against loss in the transaction of an unlawful business ; and that they, therefore, are without remedy upon it.

As to the first point, it is enough to say that, to obtain a new license under the statute, a new appointment of the agent is not necessary. When the annual license expires, in order to renew it, a certificate that the agency continues, not a new appointment^ is required of the company. There can be nothing in this to limit the agency to one year.

The claim that, upon the agreed statement of facts, the court should hold the bond void for illegality proceeds upon a misapprehension as to where the burden of ■ proof fills in that respect. It is for one who asserts the illegality of a contract, and would release himself from its obligation on that ground, to make the facts which support the claim appear in proof. Because the statement is silent on the subject, the court will not assume that either the company or the agent acted with out license, and therefore illegally. Where nothing appears to the contrary, the presumption is in favor of the legality of contracts and the legal action of contracting parties. Farnum v. Bartlett, 52 Maine, 574.

*545 Upon the agreed facts there is neither proof nor presumption that the business in which the agent was engaged was an illegal one, and nothing to deprive the plaintiffs of the security which they had taken against his default.

Judgment for plaintiffs. Execution to issue for $180.38, and interest from September 5, 1877.

Appleton, C. J., Walton, Peters and Libbey, JJ., concurred.