77 Neb. 282 | Neb. | 1906
Tbe plaintiff (appellee) brought this action against the defendant on a beneficiary certificate which purports to
“Sec. G. The liability of this fraternity for the payment of benefits upon the death or injury of a member shall not begin until all- the acts, qualifications, and requirements prescribed for the applicant in the above division, and in all the laws, rules and regulations and ritual of the fraternity shall have been fully complied with by him, and until all acts therein prescribed for the lodge shall have been fully complied with by it, and until his application shall have been approved by the lodge and head physician, and a benefit certificate issued as provided in section C. of this division and delivered to applicant while in good health. And no officer of this fraternity is authorized or permitted to waive any of the provisions of this division or of these laws, or any other of the laws of this fraternity which shall relate to the contract of insurance between the members and the fraternity.”
The plaintiff’s application for membership was favorably acted upon by the subordinate lodge in this state and approved by the local physician, as well as by the head physician of the association, and his beneficiary certificate, bearing date of April 30,1904, and duly signed by the proper officers, was forwarded by the supreme secre
The constitution of the association, as well as the statute under which it is conceded it does business, restricts the benefits of the association to its members and their beneficiaries. It is a secret order and it is a matter of common knowledge that initiation is a condition precedent to membership in an order of that character. To speak of of an uninitiated member of a secret order would involve a contradiction of terms. The plaintiff appears to concede that membership in the order is a condition precedent to a recover on his certificate and that the constitution contemplates that initiation shall precede men)-
It remains, then, to inquire whether the delivery of the certificate to the plaintiff by the secretary of the subordinate lodge and the retention of the payment subsequently made by the plaintiff to such secretary amount to a waiver of the provision requiring initiation. One of the essential elements of a waiver is that the acts relied upon as constituting a waiver be those of the persons whose rights are to be affected by it, or of some one duly authorized to act for him. The association is a corporation and, consequently, can act only through its officers or agents. Such officers or agents may bind it while acting within the scope of their authority, but not beyond.. The authority of each is defined and limited by the constitution of the association which is a part of the contract upon which the plaintiff seeks to recover. He is therefore chargeable with notice of such limitations and no question of ostensible authority arises, That the constitution of the association
We come now to the acceptance and retention by the secretary of the subordinate lodge of the dues and assessments paid by plaintiff subsequent to the date of the delivery to him of the certificate. The record does not show-that any of these payments Avere brought to the knoAvledge of the supreme lodge.. It does show that two of them were brought to the notice of the supreme secretary who at once repudiated them on the ground that the plaintiff was not a member of the association. The reception of these payments stand, then, merely as the acts of the secretary, of the subordinate lodge.. He had authority to receive such payments from members of the association, and while acting within the scope of such authority could bind his
It is recommended that the judgment of the district court be reversed and the cause remanded for further proceedings according to law.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for further proceedings according to law..
Reversed.