| Ill. | Sep 25, 1885
delivered the opinion of the Court:
This was assumpsit, brought in the circuit court of St. Clair county, by the widow and children of Charles Spies, deceased, on a certificate of membership in the Covenant Mutual Benefit Association of Illinois, whereby that association promised to pay them $5000 upon the death of Charles Spies, subject to certain stipulated conditions. The defence interposed upon the trial in the circuit court was, that the certificate of membership was cancelled by the association on the 5th day of December, 1882, because of the violation by the said Charles of a clause therein, whereby it was provided that if he should, at any time after the certificate was issued, use alcoholic stimulants so as to seriously impair his health, the certificate should become null and void. The jurf found the issues for the plaintiffs, and assessed their damages at the amount named in the certificate. The court, after overruling a motion for a new trial, rendered judgment Upon the verdict, and that judgment was affirmed, on appeal, by the Appellate Court for the Fourth District.
The principal controversy in the circuit and Appellate courts was on the question of fact, and that being finally settled against appellant, there are left for our determination but three questions, neither of which is of difficult solution, nor demands extended discussion.
First—It is contended that the court erred in refusing to' give the ninth instruction asked by the defendants, which was as follows:
“You are further instructed, that if you shall be satisfied, from the evidence, that the contract sued on required the annual payment of three dollars, membership fee, on or before September of each year, and that Charles Spies knew of the requirement, then, if the jury shall believe, from a preponderance of the evidence, that Spies did not pay the membership fee for 1883, and made no tender of the money to defendant, or, having made tender of it, failed to keep the tender good by bringing the money into court, then the want of such payment or tender would not continue him a member of the defendant’s association.”
The certificate of membership contains a clause, marked “1,” requiring the payment of an annual assessment of three dollars on or before the first day of September, and whereby the assured “further agrees to pay, on the death of every member of this association, an assessment, never to exceed one dollar and twenty cents, ” etc. And the next clause in the certificate, which is numbered 2, is as follows: “The holder of this certificate further agrees, that if the said annual or special assessments and collection of costs are not received by the association within thirty days from date of notice, then this certificate of membership shall be null and void, and of no effect. ” Very clearly, the effect of this was to entitle the holder of the certificate to notice of the annual assessment before a default would occur for its non-payment. It was competent for the contracting parties to fix their own terms in this respect, and, having fixed them, they must abide by them. Thirty days after the date of the notice, but not until then, the parties have contracted, if the money is not paid, the certificate shall be void. There was, therefore, no obligation to make a tender, in the absence of a notice, for the purpose of preventing a forfeiture, and the instruction was properly refused.
Counsel for appellant, in their argument, concede that the non-payment of the three dollars did not render the certificate void, but they insist that the payment is a condition precedent, which Spies or his legal representatives, or those claiming rights under his contract, were bound to perform or-to offer to perform before he or they could ask performance upon the part of the appellant. This is a concession that the court properly refused the ninth instruction as asked. The proposition contended for was not ruled upon by the court, and it is for that reason impossible that any error can be assigned in regard to it. It is not before us, and we do not express any opinion upon it. Evidence in regard to a tender of this three dollars was before the jury, and no specific erroneous ruling of law in that respect being pointed out, we can not presume error.
Second—An objection is urged that the circuit court erred in permitting appellees’ counsel to call appellant’s secretary to the witness stand on two different occasions, and to be interrogated as to whether he had specially sent Spies notice of his annual dues. Inasmuch as it is not pretended that such notice was sent, and that we hold, in the absence of such notice, the certificate could not be annulled for the nonpayment of the amount, it is evident appellant was not prejudiced by this ruling. Proving the same thing twice, when the first proof is complete and distinctly understood, is a useless waste of time; but it is not perceived, nor satisfactorily shown, how such useless proof could improperly affect some other question.
Third—The only other objection raising a question of law is, that the court erred in admitting in evidence a by-law of appellant, as follows: “Upon receipt of notice of the death of a member of the association, the secretary shall immediately forward, to the representatives of the deceased the proper blanks; and full instructions how to make proofs of death. ” The objection assumes that the question of the death of Spies was contested, and the onus of proof on appellees. Primarily, the burden is, undoubtedly, on the plaintiffs, in such cases, to prove the death; but that proof may be ivaived. The record here shows that appellant was notified of the death of Spies, and requested to send instructions as to the proof required of that fact, and that appellant thereupon, instead of sending the requested instructions, set up the claim that Spies was not a member of the association at the time of his death, and that the certificate had been cancelled,—and this claim has ever since been consistently adhered to throughout the litigation. This was a waiver of the proof of death. Grattan v. Metropolitan Life Ins. Co. 80 N.Y. 281" date_filed="1880-03-09" court="NY" case_name="Grattan v. . Metropolitan Life Ins. Co.">80 N. Y. 281; May on. Insurance, sec. 469.
We incline to the opinion that the evidence, if proof, of that which it was introduced to establish had not been waived, was admissible. Spies' was a member of the association. The by-laws were binding upon the association and all its members, and the contract was made with reference to the powers and duties of the association, as fixed by its charter, and its by-laws pursuant thereto. The widow and children of Spies had a right to assume and rely on the performance of the by-law. See Protection Life Ins. Co. v. Foote, 79 Ill. 362; Woodfin v. Asheville, etc. Co. 6 Jones, (N. C.) 558.
Perceiving no error of law in the rulings below, the judgment must be affirmed.
Judgment affirmed.