Prior to the enactment in 1920 of the legislation here applicable, the South Carolina courts had held that a mutual insurance company, in the absence of a statute to the contrary, might issue a policy for a cash premium which was not subject to assessment. Wetmore, Receiver, v. McElroy, 1912, 96 S.C. 182, 80 S.E. 266, 267, Ann.Cas.1916B, 79. In that case, the Court quoted with approval the following from Union Ins. Co. v. Hoge, 21 How. 35, 16 L.Ed. 61: The South Carolina Act of 1920 included a section, now Section 8097 of the Code of 1942, which reads: 'The maximum premium payable by any member shall be expressed in the policy or in the application for the insurance.
Public policy: 56 A.S.R., 135; 33 L.R.A. (N.S.), 68; 11 Am. Rep., 24; 35 L.R.A., 309; 56 A.S.R., 119; 47 P., 582; 94 P., 441; 88 A.S.R., 459. Consideration: 8 S.C.L., 62; 35 S.C. 314; 47 S.C. 322; 11 S.C. 591; 11 S.C. Eq., 483; 15 L.R.A., 80; 34 L.R.A., 707; 44 L.R.A., 542; 84 Am. Dec., 557; 23 A. S.R., 447; 55 Am. Rep., 446; 52 Am. Rep., 41; 28 Am.Rep., 272; 35 A.S.R., 783; 34 A.S.R., 184; 100 Am. Dec., 609. Corporation estopped from attacking transactionentered into beyond scope of corporate power: 96 S.C. 182; 54 S.C. 582; 87 S.C. 445; 91 S.C. 572; 89 S.C. 73; 81 S.C. 152; 76 S.C. 211. October 5, 1935.
The majority rule is the same, in the absence of an express statutory prohibition. ( Union Ins. Co. v. Hoge, 21 How. 35, 16 L.Ed. 61; Mygatt v. New York Protection Ins. Co., 21 N.Y. 52; Wetmore v. McElroy, 96 S.C. 182, 80 S.E. 266, Ann. Cas. 1916B, 79, and note; 1 Couch on Insurance, sec. 251, p. 594.) As previously noticed, the articles of incorporation, in some instances, and the by-laws of all these mutual insurance companies provide for the issuance of single cash premium policies. It is true that these corporations could not by mere by-law provision increase the authority vested in them contrary or in addition to the powers vested in them by their articles of incorporation and the statutory provisions of their respective states of origin.
Messrs. J.R. Earle, and M.C. Long, for appellant, cite: No action may be maintained against State without authorityof law: Secs. 763, 760, 2645 Code; Sec. 457, Cr. Code; 62 S.C. 337; 66 S.C. 153. Messrs. Herndon Thompson, for respondents, cite: Not necessary either to plead or prove a public statute: 2 Strob., 60; 20 A. E. Enc., 594; 21 R.C.L., 443; 25 R. C.L., 946. Money due here on implied contract: 107 U.S. 568; Id., 348; 54 S.C. 572; 189 U.S. 122; 139 U.S. 67; 77 U.S. 676; 15 A. E. Enc., 1110; 106 U.S. 487; 22 Pick., 181; 123 Mass. 129; 131 Mass. 258; 102 U.S. 294; 98 U.S. 621; 118 U.S. 256. Doctrine of ultra vires inapplicablewhere party claiming its protection retains benefit oftransaction: 105 S.C. 450; 189 U.S. 122; 54 S.C. 582; 96 S.C. 182. February 8, 1929.
" Also see cases in note to Wetmore v. McElroy, ( 96 S.C. 182, 80 S.E. 266), in Annotated Cases 1916B, at page 85. Much reliance is placed by respondent on the case of School District No. 8 v. Twin Falls County Mutual Fire Ins. Co., 30 Idaho 400 ( 164 P. 1174), wherein it was held that the issuance to a school district of a policy of unlimited liability was in violation of a similar constitutional provision.
Decree for plaintiffs, and substituted parties defendant appeal. Affirmed in part, and otherwise remanded. Messrs. Jas. A. Kennedy and Thomas M. Boulware, for appellants, cite: Principal estopped from denying authorityof agent after accepting benefits from unauthorized act: 96 S.C. 182. Elements of equitable estoppel: Pom. Eq. Jur., Sec. 805. Error to grant order of reference unless longaccount involved: 133 S.C. 149. Jury better qualified topass upon facts than judge: 125 S.C. 271. Messrs. Harley Blatt, for respondents, cite: Concurrentfindings of Master and Circuit Judge not reversed unlessagainst weight of testimony: 29 S.C. 498; 114 S.C. 186; 101 S.C. 462; 96 S.C. 106.
Action by J.A. Fox against the Junior Order United American Mechanics. From judgment of nonsuit, plaintiff appeals. Mr. J. Harry Foster, for appellant, submits: That unreasonableby-laws are not binding: 68 S.C. 55; 3 Enc. of Law, 2d Ed. 1062. When the facts are undisputed the question,whether a by-law, rule or regulation is reasonable is one forthe Court: 99 S.C. 141; 78 S.C. 382; 66 S.C. 202; 44 S.C. 442; 98 S.C. 206. The Sovereign Camp was responsiblefor the failure of the agent to discharge his duties: 95 S.C. 66; 54 S.C. 582; 96 S.C. 182; 69 S.C. 413; 189 U.S. 122; 92 Am. St. Rep. 761. Defendant cannot repudiate thecontract and retain money paid as dues in advance: 102 S.C. 115; 104 S.C. 403. Forfeitures are not favored andare to be construed strictly: 70 S.C. 77; 42 S.C. 14; 43 S.C. 26; 46 S.C. 546. Messrs. Butler Hall, for respondent (no citations).
Mr. Jacob Moorer, for appellant, cites: As to transactionsand communications by plaintiff with a deceased person: Code of Civil Procedure, sec. 438; 89 S.C. 347; 100 S.C. 351; 205 N.Y. 384; 98 N.E. 918. As to error in notgranting nonsuit: 99 S.C. 421; 81 S.C. 111. As to waiver: 84 S.C. 97; 88 S.C. 222. As to refusal of motion for newtrial: 93 S.C. 94; 95 S.C. 1. Mr. Lee Royall, for respondent, cites: As to principalbeing responsible for failure of agent to discharge his duties: 102 S.C. 594; 54 S.C. 582; 96 S.C. 182; 69 S.C. 413; 76 S.C. 211. As to defendant-appellant being bound to allegeand prove delinquency of insured to establish the forfeitureof the right to indemnity: 107 S.C. 294; 107 S.C. 302; 106 S.C. 317. July 19, 1918.
Therefore it must be presumed that the money paid for the lot is either now in the hands of the executors, awaiting to be divided among the devisees, or that they have already received it. The doctrine of ultra vires is inapplicable, when the party claiming its protection retains the benefits of the transaction. EasternBuilding L. Asso. v. Williamson, 189 U.S. 122, 23 Sup. Ct. 527, 47 L.Ed. 735; Williamson v. Association, 54 S.C. 582, 32 S.E. 765, 71 Am. St. Rep. 822; Wetmore v. McElroy, 96 S.C. 182, 80 S.E. 266, Ann. Cas. 1916b, 79. In the case of Hunter v. Hunter, 58 S.C. 382, 36 S.E. 734, 79 Am. St. Rep. 845, the rule is stated that subrogation need not be specifically pleaded, where facts set up in the answer sustain such plea, and where testimony showing it was admitted without objection; but where such point has not been made below, the case will be remanded, with leave to defendants to so amend their answer as to set it up. Where executor sells lands in excess of the power conferred by will, to pay debts of testator, the purchaser will be subrogated to rights of creditor, and can hold possession of the land, as security for so much of the purchase money as was paid on such debts.
Currence v. Woodmen, 95 S.C. 61, 78 S.E. 442. The following cases show that the Sovereign Camp was responsible for the failure of the agent to discharge said duties: Williamson v. Association, 54 S.C. 582, 32 S.E. 765; Wetmore v. McElroy, 96 S.C. 182, 80 S.E. 266; Mitchell v. Leech, 69 S.C. 413, 48 S.E. 290, 66 L.R.A. 723; Williams v. Tolbert, 76 S.C. 211, 56 S.E. 908; EasternB. L. Association v. Williamson, 189 U.S. 122, 23 Sup. Ct. Reporter 527. In the last mentioned case, the Court quotes with approval, the following language from Vought v. Eastern B. L.Assn., 172 N.Y. 508, 65 N.E. 496, 92 Am. St. Rep. 761.