I think the plaintiff's objections to the reassessment should be overruled, and that an order should be made in accordance with the provision of chapter 128, Laws Wis. 1881, requiring the plaintiff to pay into court, for the use and benefit of the defendants, the amount of the tax assessed upon his lands according to the reassessment tax roll, which I believe is $1,839.96, or $70.20 less than the original assessment, which was $1,910.16; and that upoU' complying with such order of the court a judgment be entered against the defendants, with costs. The order may be entered nunc pro tunc as of the June term, when the cause was heard.
FUNK, Adm'r, v. ANGLO· AMERICAN INs. Co.t
(Oircuit Oourt, E. D. Missouri. April 22, 1886.)
CORPORATION-SERVICE OF PROCESS ON FOREIGN FmE INSURANCE COMPANIES UNDER MISSOURI STA1'UTES.
Where a foreign fire insurance company does business in Missouri through an agent, without complying with the requirements of the Revised Statutes of that state as to the appointment of an agent to receive service of process, process may be served in suits against it upon the agent through whom it transacted its business.
At Law. Suit upon a fire insurance policy. The summons was served upon William A. Noyes, as agent of the defendant, which is a foreign company. The defendant filed an answer containing a general denial, and stating that said Noyes has never had any authority to accept service of any legal process on it, and that there is no agent or person representing it in this state who has authority to accept service. The Revised Statutes of Missouri provide (§ 3489) that "a summons shall be executed, · · · where defendant is a corporation or joint-stock company, organized under the laws of any other state or country, and having an office or doing business in this state, by delivering a copy of the writ and petition to any officer or agent of such corporation or company in charge of any office or place of business, or if it have no office or place of business, then to any officer, agent, or employe in any county where such service may be obtained." Said statutes also provide (§ 6013) that "any insurance company not incorporated by or organized under the la ws of this state, desiring to transact any business by any agent or agents in this state, shall first file with the superintendent of the insurance department a written instrument or power of attorney, duly signed and sealed, appointing and authorizing some person, who shall be a resident of this state, to acknowledge or receive service of process,
by Benj. F. Rex, Esq., of the St. Louis bar.
ANGLO-AMERICAN INS. CO.
and upon whom process may be served for and in behalf of such company in all proceedings that may be instituted against said company in any other court of this state, or in any court of the United States in this state; and consenting that service of process upon any agent or attorney appointed under the provisions of tbis section should be taken and held to be as valid as if served upon the company, according to the laws of tbis or any other state; and such instrument shall furtbermore provide tbat such attorney's authority shall continue until revocation of his appointment is made by such company by filing a similar instrument with said superintendent, whereby another person shall be appointed as sucb attorney." Georpe Steu;art, for plaintiff. J. L. cf; F. P. Blair, for defendant. TREAT, J., (orally.) Tbe amount of loss was in excess of the sum insured. The proofs of the loss were duly made, whereby tbe amount of the policy, to-wit, $1,100, was payable October 1, 1885. Hence, the only inquiry is as to the sufficiency of the service on the agent Noyes wbereby the defendant could be bound. As heretofore held by this court, tbe contract of insurance was made in this district by said Noyes, as agent of the defendant, and consequently said agent under tbe rules of law still remained sucb agent for tbe purposes of service, unless, possibly, due notice had been given to the plaintiff tbat he bad ceased to be said agent. Where contracts by a foreign insurance company are made in a state without regard to its legal requirements, tbe company sbould not be permitted to escape from its liabilities through its non-compliance witb the statutory laws of said state. It appears that tbis policy was formally delivered and premiums collected tbereon by the company's agent, W. A. Noyes, within tbis district; that service in this case was had on said agent Noyes; tberefore neither a motion. to quash nor a plea in abatement as to service could prevail. The defendant company delivered the contract and collected the premium thereon through its said agent within this jurisdiction, and it must be beld that he continued to be the agent of this company for all tbe purposes of said contract until the final determination thereof, un less something to the contrary is shown. The fact that he invaded the tenitorial jurisdiction of Missouri without compliance with its statutory demands cannot excuse him or the company he represented from tbe obligations of the contract. \Vere this otherwise, a party would be permitted to take advantage of its own violations of the law to escape its right. ful obligations. Judgment for plaintiff for the sum of $1,100, witb interest at 6 per cent. per annum from October I, 1885, to date, to-wit, $1,136.85. v.27F.no.4-22
WOODWARD V. GOULD.!
«(Jircuit (Jourt, E. D. Missouri. April 21, 1886.)
In a suit for breach of a contract the complete performance of which haa been abandoned by the plaintiff because of the defendant's refusal to proceed, the petition should show that some hing is due the plaintiff on account of what he did before such refusal and abandonment.
At Law. Krum et Jonas, for plaintiff. Bennett Pike, for defendant. TREAT, J., (orally.) When this case was presented to the court on the demurrer to the first amended petition an order was made that the then amended petition should be made more definite. The second amended petition is now to be considered under a demurrer filed. . The said second amended petition is, to a large extent, quite as vague and indefinite as the former amended petition, yet the demurrer must rest on the allegations as now presented. Applying the ordinary rules pertaining to pleadings, it seems that there was an arrangement between plaintiff and defendant fol' the organization of a corporation the benefits of which, when organized, were to be divided between the respective parties on the terms stated, the defendant paying certain preliminary costs and expenses. The petition avers that the plaintiff, on whom the duty devolved, had done some work looking to the organization of the proposed corporation, which corporation never was organized. The petition also avers that certain expenses for the survey and location of the proposed railroad had been incurred. It nowhere avers that said expenses had not been paid by the defennant. It does aver that while the plaintiff was ready and willing to perform the agreement on his part, the defcndant refused to proceed further under said agreement. 'What, under such statement, would be the cause of action? Damages actually incnrred by sl1ch breach, but not prospective 01' speculative damages. Nothing appears in the petition to show non-payment by the defendant of all costs and expenses incurred prior to the abandonment of the enterprise. On the face of the petition it appears the plaintiff did not complete the organization of the corporation as agreed, nor that the expenses for preliminary work had not been fully paid by defendant. Therefore, despite the general allegation in the petition that the plaintiff had performed all that was required of him to be performed, the specific allegation shows that he did not so- do. The legal consequence is that a contemplated enterprise having been abandoned, neither party proceeding therewith, the sole right of recovery under the most favor1 Reported