80 A. 227 | N.H. | 1911
The by-laws relied upon to defeat a recovery here can have no greater effect than a similar provision in a policy of insurance. In either case the provision is only one of the terms of the contract, and a waiver of its stipulations may be found from a proved course of conduct. Dunn v. Insurance Co.,
Even if it be conceded that the by-laws were of such a character that none of the local officers could in any way modify the insurance contract, the fact remains that there was a long continued course of business not in accordance with the by-laws. This was probably known to the insured and tended to show that he did not attempt to defraud the defendant, but on the contrary entered into the contract in good faith. If this was true, the defendant could not retain the benefits of the transaction and at the same time escape its burdens. McDonald v. Insurance Co.,
A finding that the insured entered into the contract in good faith and in the way the defendant's business was customarily done might be made upon the evidence produced. Add to this the proved fact that the defendant retained the assessments, and a case is made which calls upon the defendant to explain its course, or else submit the result of inferences reasonably drawn from its conduct. The case should have been submitted to the jury. *167
The only other objection argued in the defendant's brief is that the policy was not put in evidence, and therefore there was nothing to show that the deceased was ever insured. The policy was produced, identified, and marked as an exhibit. If this did not make it a part of the evidence in the case, other facts shown would warrant the finding that a policy had been issued for the sum of $1,000. Undoubtedly those facts were secondary evidence, but no objection to their admissibility was offered. The reason is plain. No one thought of the objection now made at the time of the trial. If then taken it could have been instantly obviated. It does not require extended consideration here.
It appears by the transferred case that "the defendant agreed that if its motion for a nonsuit was granted and that ruling held by the supreme court to be error, that judgment should be entered for the plaintiff in the sum of one thousand dollars and interest." Judgment is ordered accordingly.
Exception sustained.
All concurred.