Page:Federal Reporter, 1st Series, Volume 7.djvu/411

 WEBSTER V. BTJFFALO INS. CO. 39O �Oraham, 100 U. S. 609 ; Biesdl v. Bailway Cos. 22 N. T. 253 ; 40 N. Y. 15a ; �50 N. Y. 396; Green's Brice's Ultra Vires, (Ist Ed.) 263, note. And see, �generally, upon thc subjeot of Ultra Yires, 12 Cent. Law Jour. 386 et seq. �Cincinnati, J une, ISSl. J. C. Haepbk. ���Webstbb and others v, Buffalo Ins. Co. �{Circuit Court, E. D. Missouri. January 4, 1881.) �1. Ultba VntKS — CoNTBACT OF Insubance. �An insurance company is net estopped from setting up the fact that a contract of insurance made tlircugh its agent is ultra mres, though its agent had led the other coutracting party to believe, and he did believe, that the company had power to make it, and though no pretence waa set up by the company, or its agent, that the con- tract Vas vitra vires uatil a loss thereunder was known by all parties to have occurred. �Tbis was a suit upon a contract of insurance agaiust �marine risks. The petition alleged that a cargo consigned �to plaintiffs, and covered by defendant's policy of insurance, �had been lost at sea, and asked judgment for the amount of �the loss. The answer pf the defendant set up in substance �that the contract of insurance was idtra vires, for the reason �that the defendant had no power, under its charter, to insure �against perils of the sea. The plaintiffs demurred to the �answer on the grouhd — �First, that it contained no dejfence to the plaintifl's cause of action ; second, because the defendant was estopped frOm pleading its want of power to make the contract sued upon, and because the governinent whlch created it (New York) alone has power to deal with it for a viola- 1 ion of its charter, privileges, etc. �The demurrer waa overruled, and plaintiffs resplied.and alleged — �That they were led to believe by defendant's agent who issued the pol- icy, and did believe, that the defendant had power, under its charter, to insure against perils of the sea ; that defendant's agent insured them against those perils, etc.; and that no objection waa made to the contract aforesaid by defendant, or its agent, and no pretence was made that said contract was ultra vires until the loss had occurred, and it was too late to insure in another company ; and that for those reasons defendant shoiild be held estopped from pl-eading that said contract was ultra ��� �