46 Wash. 320 | Wash. | 1907
The Knights of the Modern Maccabees, a corporation, is a fraternal society, organized on the lodge plan, for mutual protection of its members, upon whom it levies assessments to pay death losses and endowments. Its by-laws provide that all male persons of good moral character, over eighteen and under fifty-one years of age, may be admitted as beneficial members. On November 11, 1890, John Elliott, wishing to become a member of Tent No. 357, then being organized by one F. A. Osborne, a deputy commander at Lake City, Michigan, signed a written application, in which he stated that he was fifty years of age. On February 2, 1891, an endowment certificate reciting his age as fifty years was issued to him for $2,000, payable at death, or in the event of his living to the age of seventy, to be then payable to him in ten equal annual installments. The certificate provided that it was subject to the conditions, limitations, warranties, and agreements contained in his application.
On November 27, 1891, being suspended for nonpayment of assessments, Elliott made a written application for reinstatement, in which he stated that he was then fifty-one years of age. He was afterwards re-examined and reinstated. At the date of his original application Elliott was, in fact, over
“I was 70 years old on the 13th day of January, but, of course, my certificate shows 65 years old, but the way that comes is this: They started a Tent in Lake City, Michigan, and I went in as a charter member on these conditions that I was to have no trouble hereafter, as I told them that I was too old to join the Order. I told F. A. Osborne, Deputy Commander. He was after me for a week to join. I told him I was too old and he said he would work me in without any trouble if I should go in as'they lacked one man and did not know where to get him, so that they could organize the Tent. . . .”
Some correspondence followed, and the society, learning that Elliott was over fifty-five when admitted, refused to receive further assessments from him, and forfeited his certificate, together with all assessments theretofore paid. The forfeiture was declared under the following stipulation, contained in his written application for membership and made a part of his certificate:
“I hereby declare that the above are fair and true answers to the foregoing questions, and I hereby agree that these statements,- with this application and the constitution and laws now in force or that may hereafter be adopted, shall form the basis of the contract for endowment; that any untrue or fraudulent answers, and suppression of any facts in regard to my health and age, . . . shall vitiate my beneficiary certificate and forfeit all payments made thereon; . .
Elliott thereupon commenced this action to recover $348 paid by him on assessments. He claims that he truthfully stated his age to Osborne, the deputy commander; that he then knew he was not eligible to beneficial membership; that Osborne agreed to work him in, and filled a blank application falsely stating his age to be fifty years; that after giving
Thei’e is not much conflict in the evidence, which shows the facts above stated. The appellant, in support of its assignments of error, contends that respondent knew he was not entitled to beneficial membership; that he not only signed the original application containing a false statement as to his age, but also signed another application for reinstatement, repeating the false statement; that during all the years he paid assessments, he held his certificate reciting that he was only fifty years of age when admitted; that he and Osborne conspired to deceive the appellant into admitting him to beneficial membership, and that his certificate was void ab initio, rendering his payments liable to forfeiture.
The respondent contends that, when he stated his true age to Osborne, who was appellant’s agent, Osborne’s knowledge became its knowledge, and that the appellant, having received the assessments after acquiring such knowledge, is estopped from declaring any forfeiture. Accepting as truthful the respondent’s statement that he told his correct age to Osborne, we nevertheless conclude from the evidence that he and Osborne did in fact conspire to defraud the appellant into accepting him as a beneficial member. The general rule in the law of agency is, that notice to an agent is notice to his principal. But an exception to the application of this general rule arises when the agent’s conduct is such as to raise a clear presumption that he will not communicate to his principal his knowledge of the fact in controversy, as where he acts in his own interest and adversely to the interest of his principal. 1 Am. & Eng. Ency. Law (2d ed.), 1144, 1145. Hanf v.
In National Life Ins. Co. v. Minch, 53 N. Y. 144, 150, the court said:
“If a person colludes with an agent to cheat the principal, the latter is not responsible for the acts or knowledge of the agent. The rule which charges the principal with what the agent knows is for the protection of innocent third persons, and not those who use the agent to further their own frauds upon the principal.”
We are convinced that respondent participated in defrauding the appellant, for the reasons that the false statement as to his age was repeated in his application for reinstatement; that he knew his age was incorrectly stated in his endowment certificate; and that, when he actually arrived at the age of seventy, he endeavored to secure the annual payments on his endowment, although he had then paid assessments for a period of five years less than his contract contemplated. In both of his applications he declared that all his answers were fair and true, and agreed that his statements therein contained, together with the constitution and by-laws, should form the basis of his contract of endowment. He knew he was fifty-five years of age, and that he could only be admitted to membership by some fraudulent method in violation of the constitution and by-laws. Accepting as true his statement that he did not know Osboime falsely stated his age in the application, he did know that Osborne could only work him in as a member by perpetrating some fraud upon the appellant. The statements as to his age, whether they be regarded as warranties or representations, were material and were conclusively made so by express agreement making the certificate void and forfeiting all payments made thereon
The by-laws of the appellant society expressly prohibited the admission of beneficial members over fifty years of age. This provision being intended for the protection of its members was one that could not be waived by its officers. While the authorities hold that certain omissions affecting procedure, such as time of payment of assessments, proof of loss, etc., may sometimes be waived, it certainly is not the rule that officers of a fraternal society organized for the mutual protection of its members can waive a by-law so as to admit persons of a prohibited age and thereby bind the society. 3 Am. & Eng. Ency. Law (2d ed.), 1069. In McCoy v. Rowan Catholic Mut. Ins. Co., 152 Mass. 272, 25 N. E. 289, an applicant made a misrepresentation as to his age, and the question arose as to whether the officers of the society had waived such misrepresentation. The court said:
“But even if the officers of the corporation had attempted to waive the by-laws in this particular, which was of the substance of the contract, we are of opinion that they had no authority so to do. This is a corporation which does not make contracts of life insurance with strangers, but arranges a system of payments for the benefit of the relatives of its deceased members. It adopts by-laws to determine the relations of the members to one another, and also their rights against the corporation. The principles which apply to ordinary mutual insurance companies in regard to the waiver of by
Respondent insists that, if his certificate was void ab initio, as contended by the appellant, he never had any protection; that his payments were therefore made without consideration, and that he should now be entitled to recover the same. In view of his fraudulent conduct and the express stipulations of his contract, which declared a forfeiture of his assessments for false statement as to his age, this contention cannot be sustained. 16 Am. & Eng. Ency. Law (2d ed.), 954; Aetna Life Ins. Co. v. Paul, 10 Ill. App. 431; Taylor v. Grand Lodge, A. O.U. W. (Minn.), 105 N. W. 408.
As an additional reason why the respondent should not be permitted to recover, the appellant correctly contends that the parties cannot now be placed in statu quo. The appellant is a corporation doing business for the mutual benefit of its members and not for pecuniary profit. While it was receiving the assessments from the respondent, the amounts so collected v'ere all used to pay death and disability claims. Its business was conducted on what is known as the current cost plan. Assessments were only levied upon the membership as needed to pay current death and endowment claims. All the assessments paid by the respondent went into the life benefit fund and were immediately disbursed in satisfaction of the claims mentioned. None of the money paid by him is now in appellant’s possession. If it should now refund to him, it would have to do so from assessments collected from many who have become members since the payments were made by him.
The honorable trial court erred in entering judgment in favor of the respondent. The judgment is reversed, and the cause remanded with instructions to dismiss the action.
Hadley, G. J., Fullerton, Root, Mount, Dunbar, and Rudkin, JJ., concur.
