64 Neb. 226 | Neb. | 1902
The plaintiffs bring this proceeding in error to revieiv a judgment of the district court of Gage county, based upon a verdict for the defendant returned in obedience to the peremptory direction of the trial court. The defendant is a fraternal mutual benefit association organized under the laws of the state of Kansas, with its head office at Topeka, and licensed to transact business in Nebraska. The defendant organization is founded upon the lodge system, with subordinate councils in various cities, having a ritualistic form of work, and embracing in its scope fraternal
It is first insisted that the insured never had any notice of her suspension from the local council, and therefore she is not bound thereby. A careful examination of the rules respecting the suspension of members indicates that no notice of suspension to its members is required. In this respect the rules are self-executing. Section 3, article 14, of the by-laws refers especially to the subject of suspension for the non-payment of assessments, and, among other things, provides as follows: “The certificate of each member who has not paid such assessment on or before the 28th of said month shall, by the fact of such non-payment, stand suspended, and no action on the part of the council or any' officer threeof shall be required as essential to such suspension.” These provisions of the by-laws are clear and explicit that no notice of suspension is required.
The next contention of the plaintiffs is based upon the plea of a waiver of the prompt payment of the dues and assessments by an agreement with the financial secretary of the local council, whereby the time of payment of the beneficiary assessments on the. certificate was extended to January, 1896. The testimony of the plaintiffs and defendant upon this phase of the case presents the only conflict of evidence in the record. The husband of the insured testified that he paid the dues of his wife owing to the local council up to and including July, 1895, and at that time he had a conversation with the financial secretary of the local council, which is developed by the following questions and answers:
Q. Now just state to the jury what conversation you*229 had, if any, in July, 1895, with H. S. Woodruff, financial secretary of the defendant, the Knights and Ladies of Security, in relation to the further payment of-assessments and local lodge dues for the next ensuing six months.
A. Why, I went to Mr. Woodruff’s place of business and he told me that I didn’t need to pay the assessment. He said that I could let it run until January, and wouldn’t be running any risk whatever.
Q. What, if anything, did he say at that time in relation to paying the local dues?
A.-Why, he said if I kept up the local dues, why the others could run six months. That would be January, 1896. .
Q. In relation to all other dues and assessments, except the local dues, what did he say in relation to giving time upon them, if anything?
A. Why, he said if I would pay the local dues, why I could have six months’ time on the other, and wouldn’t be running any risk.
The testimony was received over the objection of the defendant that it was seeking to change the constitution and by-laws of the national council in relation to dues, fees and assessments by the parol evidence of a subordinate officer of the local lodge. Whthe this evidence respecting the extension of time of payment, etc., was denied by Woodruff, the former financial secretary of the local council, still, if it was competent to be considered in evidence, then a disputed question of fact is presented, which, under the well recognized rule in this state, should have been submitted to the jury. We do not think the evidence of Field, above quoted, was admissible. Nowhere in the constitution and by-laws of the defendant society is authority conferred upon the financial secretary of a subordinate council to make the contract claimed to have been made, or to waive the prompt payment of the assessments. It was not sought to be shown that Woodruff had any special authority to make the agreement. His official position as an officer of the local council alone is relied upon as such
Lastly it is urged that by reason of the sickness of Jennie E. Field, from which she never recovered, she was not bound to pay her beneficiary assessments, but, under the rules of the society, it was the duty of the subordinate council to pay the same, and keep her in good standing in the order. The constitution contains a provision respect
We therefore recommend that the judgment of the district court be affirmed.
By the Court.: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.