140 Iowa 41 | Iowa | 1908
— In. December, 1904, Paul C. Hexom became a member of the defendant association, and there was issued to him, by the Supreme Tent, so-called, of the association, a certificate of membership-, or policy, which
Sec. 281. The following persons shall not be admitted to the association: . . . Persons engaged as principal, agent or servant in the manufacture or sale of spirituous, vinous or malt liquors as a beverage.
Sec. 282. Any member who engages in a prohibited occupation shall thereby forfeit all rights as a life benefit member of this association, and this certificate shall thereby become absolutely null and void, without action on the part of his tent or of the association, or of any of the officers thereof, etc.
See. 408. No benefit shall be paid on account of the death or disability of a member while engaged in any prohibited occupation.
Sec. 243. The record keeper shall be the Secretary and Treasurer of the T'ent, and it shall be his duty: . . . (3) To receive from all members the money paid on all monthly rates (due the first day of each month), etc.
Sec. 248. The record keeper shall not receive any monthly rate, etc., from any member who engages in a prohibited occupation, but shall enter the suspension of such member on the records of the tent, and report the same to the Supreme Record Keeper, giving the date and cause thereof.
The answer charges that said Paul C,. Hexom on or
We are agreed that on the case thus made the court correctly ruled against the contention for waiver. A waiver is the intentional relinquishment of a known right, or such conduct as warrants an inference of such relinquishment, and, where conduct is relied upon to constitute waiver, it must appear that the insured was induced by the association to do or omit some act which he would not otherwise have done or omitted. 3 Am. & Eng. Ency. 1089, note. It is not the intention of the insurer, but the effect upon the insured, which' gives vitality to the estoppel. May on Insurance, section 507. All of our cases proceed on this theory. Bailey v. Association, 71 Iowa, 689; Tobin v. Society, 72 Iowa, 261; Moore v. Conductors, 90 Iowa, 721; Trotter v. Grand Lodge, 132 Iowa, 513. In the case before us there is no contention — and there could not well be in view of the fact stipulation in the record — that Hexom engaged in the saloon business either in ignorance of the
From this it follows that, to make out a case of waiver, plaintiff is driven to depend upon the conduct of the local record keeper, Erickson, in retaining the deposit of money in his hands, and making monthly remittances therefrom to the supreme office of the association, after it became known to him that Hexom had embarked in the saloon business. That out of this no waiver arose we think is clear. To begin with, every lawyer knows that a principal is not bound by any act of his agent doné in excess of the authority granted to such agent. This is the general rule, and in every case reported in the books, making a departure therefrom, it Avill be found that the unauthorized act was within the apparent scope of the agent’s authority, and the circumstances thereof were such as to work an estoppel. Now, here, as we have seen, the authority vested in Erickson, as record keeper, was limited to the receipt of monthly rates, assessments, etc., due from the members of the local organization in good standing, and to
A simple analysis of the evidence will mate clear the fraud and the participation of the insured therein. Hexom made the deposit with Erickson after he had formed his plan to engage in- the saloon business. At the time, he knew of the prohibition contained in the law of the association. We say this because every member of such an association is presumed to know the laws thereof in force during the period of his membership. Hobbs v. Association, 82 Iowa, 107; Fitzgerald v. Association, 106 Iowa, 457. He made the deposit without disclosing his purpose to engage in such business, and from this it is not difficult to reach the conclusion that he expected the monthly rates, etc., to be forwarded by Erickson, notwithstanding the law of the association on the subject. Later he talked with Erickson, and, on being told that he had better drop out, he replied “he might be in the business only a short time, and when he quit he could go right on again.” Here is plainly evinced a proposal that monthly remittances should be kept up by Erickson, and that the supreme officers of the association should not be advised of the change of occupation. This latter we must conclude, because confessedly it was well understood by both Hexom and Erickson that, if knowledge of the situation should reach the supreme office, the payments would be refused, and a cancellation of the certificate ordered. As a result of the conference, Hexom, knowing, as he says, that his policy was void, left his deposit money in the. hands of Erickson, and the latter, knowing also that under the law the policy was no longer in force, continued to make remittances, and did not communicate to his superior officers a word respecting the altered situation. In the light of this no other conclusion can be reached than that the course pursued was mutually planned, and that what was done in fulfillment thereof was mutually assented to, and no one can doubt
The fact, as- conceded, that defendant has not yet returned, or offered to return, the money received by it, cannot avail plaintiff anything. We may agree with counsel that, upon discovering the fraud, it became defendant’s duty to make return of the money; but it could only do so to the person legally entitled thereto. Plaintiff does not show that he has any right of recovery. At the time the fraud was discovered Paul C. Hexom was dead, and an offer to return could not very well be made to him, and, as far as appears, he has no legal representative to whom return, or offer to return, can lawfully be made. In this situation, defendant cannot be charged with having condoned the fraud or waived the forfeiture.
The conclusion expressed must lead to an approval of the judgment. Affirmed.