153 Mass. 83 | Mass. | 1891
This is an action by the beneficiary named in a certificate of membership issued to her husband, Oliver P. Lyon, by a society incorporated by special charter in the State of Rhode Island. The objection is waived, that, as the contract to pay the plaintiff was made with her husband, she should have brought the action as his administratrix. Otherwise, it would have been fatal. Rindge v. New England Mutual Aid Society, 146 Mass. 286. Flynn v. Massachusetts Benefit Association, 152 Mass. 288. The promise to pay the plaintiff is conditioned upon the member being in good standing at the time of his death, and the defence is that he was not in good standing at that time. The reply is, that the defendant has waived that defence.
It appears that Oliver P. Lyon had failed to pay certain dues within the time allowed by the constitution
The trouble with the plaintiff’s case is, that none of the acts relied on were acts of the corporation, but they all were done by
Under the laws of the corporation, the only ways in which Oliver P. Lyon could have been reinstated were by a majority vote of the assembly within thirty days from his suspension, or after thirty days by obtaining a new medical certificate and a majority vote. All reinstatements are required to be made within ninety days from the suspension, otherwise the applicant can only be admitted as a new member. Law VII. § 3. The assessments are prescribed by and are subject to Law II. § 1. They are to be levied by the supreme secretary, and notified to subordinate assemblies. The amounts received are to be forwarded to the supreme treasurer. Presumably the supreme secretary does not name the members of subordinate assemblies to be assessed, but leaves that for them to ascertain, which of course they can do only as the laws of the corporation permit. But if the supreme secretary himself had ordered Oliver P. Lyon to be assessed, he would have had _ no authority to do it, and in that way to override the conditions of reinstatement set forth in the very laws which give him his powers. For the same reason, payments to the financial secretary, or to the supreme treasurer, could have no greater effect. It is unnecessary to consider whether no extreme case could be put in which the corporation could be held to have waived its own laws, notwithstanding the difficulties which arise from its peculiar constitution. See Brotherhood's case, 31 Beav. 365, 373. It is enough to say, that it is found not to have done so here, and that the evidence warranted no other conclusion. Burbank v. Boston Police Relief Association, 144 Mass. 434, 437. McCoy v. Roman Catholic Ins. Co. 152 Mass. 272.
As the defendant has not assessed Oliver P. Lyon, or received money from him as payment of assessments since his suspension, it follows that for this reason, if for no other, it is not bound to
Judgment for the defendant.
The form of constitution prescribed by the association for subordinate assemblies contains the following: Art. VIII. § 2. “Each member shall pay as dues, to commence with the date of initiation, such sums as shall be prescribed in the by-laws, not less than fifty cents per quarter, payable quarterly in advance, on the last stated meeting in March, June, September, and December, and any one neglecting to thus pay is in arrears, not entitled to any benefits, and if he continues in arrears for three months shall then stand suspended.”
The laws, so called, of the defendant contained the following: Law II. § 1. “ On the first day of each month, or in case that day falls on Sunday, on the following or second day, the supreme secretary shall levy such assessment or assessments, if any, as may be necessary to pay current death benefits, and notify every assembly to forward immediately to the supreme treasurer the assessments of every member initiated on or before the date of said call.” Law V. § 1. “Any member failing to pay an assessment or assessments within thirty days from date of notice calling for same, shall stand suspended, and neither he or his beneficiaries shall be entitled to any benefits from the society while he is so suspended, nor until he is duly reinstated. The financial secretary shall immediately notify the subordinate secretary, who in turn shall immediately notify the supreme secretary of such