119 Mo. App. 98 | Mo. Ct. App. | 1906
As declared upon in plaintiff’s petition, this action is upon an agreement in writing whereby defendant promised to pay to the plaintiffs, upon the death of B. A. Johnson, an amount of money equal to one assessment on all the members of the defendant not exceeding the sum of $2,000. The defendant’s theory is that it is a fraternal benefit society organized under
The ground of contention between the parties in this court relates to the petition and answer. The petition alleges that defendant is a corporation organized under the laws of Nebraska “and engaged in the life insurance business.” That plaintiff, Lula Johnson, was the wife of B. A. Johnson until his death and that the other plaintiffs are their children. That defendant “for a valuable consideration by it received from B. A. Johnson, did make, execute and deliver to- said B. A. Johnson an agreement in writing, called a benefit certificate, whereby and by the terms of which, the defendant agreed and promised, upon the death of B. A. Johnson to pay to the wife and children of said B. A. Johnson an amount equal to one assessment upon all the members of the defendant corporation, not exceeding in amount the sum of $2,000,” etc.
A demurrer to the petition, on the ground that it did not state facts sufficient to constitute a cause of action, was offered and overruled.
The answer of defendant did not deny, under oath, the execution of the written instrument set up in the petition. It was alleged in the answer that defendant was a fraternal'beneficiary association created and existing under the laws of Nebraska., having a lodge system and making provision for payment of benefits solely from assessments of members. It was alleged that defendant admits that on or about the third day of May, 1898, it executed its certain beneficiary certificate to B. A. Johnson and at his request on July 31,1901, it executed the certificate filed in this cause in lieu of the first one. The answer then alleged that under the agreement of said Johnson and defendant “evidenced by the certificate and laws of defendant” the consideration for and a condition precedent to liability of defendant to pay the certificate
At the trial, objection was made to any evidence in plaintiff’s behalf on the ground that the petition did not state a cause of action. The specific ground of objection to the petition is, that in stating the consideration for the written agreement this language was used; that “defendant for a valuable consideration by it received from said B. A. Johnson, did,” etc. The defendant insists that in stating that the agreement was made for a “valuable consideration,” the pleader did not state an issuable fact but merely a legal conclusion; and that the consideration itself should have been alleged. If we should agree with defendant that an issuable fact was not stated, it would serve no purpose in aid of defendant. There was no necessity for alleging any consideration at all. Our statute (section 894, Revised Statutes 1899) declares that all instruments of writing whereby one promises to pay another any money or property “shall import a consideration.” We may therefore reject, as surpusage, the words criticised and have a good petition remaining.
Plaintiffs proved their relationship to Johnson, his death, notice and demand on defendant and its refusal to pay. The certificate sued on was not introduced by
By failing to deny the execution of the instrument under oath, the defendant admitted or confessed its execution. [Sec. 74G, E. S. 1899.] The execution of what instrument was confessed? Manifestly the instrument alleged or described in the petition. As said in Hart v. Harrison, 91 Mo. 414, 422, the instrument “described in the petition,” is confessed. There is therefore no necessity for introducing it in evidence, since its existence, as set forth, being admitted, no issue is made upon which evidence can apply. [State to use v. Chamberlain, 54 Mr. 338; Thomas v. Life Ass’n, 73 Mo. App. 371; Love v. Ins. Co., 92 Mo. App. 192.] When it is said in the cases cited that the execution of such an instrument stood confessed as a valid contract, it was meant, of course, that it was a valid contract so far as its execution was concerned. For, there might be cases where the allegations setting forth or describing such instrument would show, that though executed, it was not, legally, a binding obligation. That, however, is not the case here. The petition describes a valid instrument and its execution, as described, stands confessed.
But though the execution of an instrument of writing, ns set forth by a plaintiff, is confessed, it does not follow that the defendant should not be allowed to show, under a proper answer, that no consideration for the instrument had been rendered. [21 Mo. App. 390.] We therefore can see no reason why, in this case, the defendant would not have been able to- show, under a proper answer, that deceased Johnson failed to pay his assessments and dues and thereby failed to render the consideration necessary to continue the certificate as a binding contract after its execution. By the terms of the statute, the certificate, as we have said, imports a consideration. But that, of course, does not prevent an affirmation showing that, in point of fact, there was no consideration, or that it failed.
From the foregoing these results follow: The answer confessed the execution of the obligation sued on. The answer failed to plead any defense thereto. The plaintiffs haying made formal proof of death, etc., and of their being the persons for whom the insurance was taken were entitled to the judgment rendered and it is affirmed.