127 Minn. 196 | Minn. | 1914
Plaintiffs replied, alleging that the charges preferred were false and were made for the purpose of avoiding defendant's obligation to deceased and to plaintiffs; that deceased was never permitted to answer said charges nor to be heard thereon, and that the alleged trial was arbitrary, unauthorized, oppressive and void; that defendant waived the provisions of the laws of the order requiring proofs of death or presentation of claim, and took and maintained the position that the contract of deceased was terminated by reason of the pretended expulsion.
The laws of the order do require the prompt monthly payment of assessments. It is admitted deceased paid none between April and the time of her death in November, 1911. They require a member of a dissolved council to take the steps alleged to preserve his membership. *199
It is admitted that she did not do so. And they require proofs of death and of claimant's claim upon blanks furnished by defendant. It is admitted no proofs were made. Plaintiffs claim the facts alleged in the answer constitute a waiver of all of these provisions. Defendant contends that they are not pleaded as a waiver of any default, except that arising from failure to make proofs of death. We do not agree with this contention. The allegation of the unauthorized repudiation of the contract is general and may be regarded as responsive to all the defenses alleged in the answer.
2. The failure of deceased to pay any assessments from April, 1910, to the time of her death, would naturally forfeit her membership unless excused. It appears, however, that after the alleged trial, and on April 22, 1910, the national secretary of the order notified deceased that she had been expelled and advised her that no further payments would be received from her. Although this alleged expulsion lay at the bottom of all the controversies between these parties, and was the only defense alleged in the original answer, strangely enough, no attempt was made to prove it on the trial.
Defendant contends the burden is on plaintiffs to show that its refusal to recognize the membership of deceased was wrongful. The law is otherwise. Forfeitures are never presumed and must be proved by the person asserting them. Cornfield v. Order Brith Abraham,
Defendant further contends that inasmuch as the letters notifying deceased of the repudiation of her membership were offered in evidence by plaintiffs, plaintiffs are bound by the statements made in them that deceased was duly expelled from the order and her certificate cancelled. Clearly this is not the law. The expulsion of deceased cannot be proved by defendant's assertion of it. Where an insurance society repudiates the contract of one of its members and makes a declaration in writing of its repudiation, its own assertion in such writing that its conduct was rightful, furnishes no evidence in its favor to that effect.
The result is, the court is obliged to regard the refusal of defendant *200
to accept further payments from deceased as wrongful, and as an inexcusable breach of the contract between them.
3. The defendant having clearly indicated its intention to refuse to receive from deceased any further assessments or to recognize her membership in any manner, the subsequent tender of assessments was not necessary to keep her certificate in force. Ibs v. Hartford Life Ins. Co.
Defendant's counsel argues at length that the governing body of the defendant society had no power to waive the payment of assessments by deceased. He predicates his argument on the assumption that the effect of such waiver was to permanently excuse deceased from future payment of assessments, and nevertheless keep her certificate in force. If the effect were as counsel assumes, then his argument would doubtless be well founded. But it is not. The action of the society did not relieve the deceased of her obligation to pay assessments. Even repeated tenders of all assessments as they became due would not affect this result. Tender never discharges an obligation. It simply excuses the person owing it from the consequences of failure to make payment at the time the contract requires. The declaration of a beneficiary society that it will not receive further payments from a member, simply excuses the member from payment at the time and in the manner required by his contract, but if he stands on his contract and seeks to enforce it, he must discharge his obligation of payment as a condition to such enforcement. If the member acquiesces in the repudiation of the contract by the society, then he loses all rights under it, for a repudiation of a contract by one party, acquiesced in by the other, is tantamount to a rescission. See Marcus v. National Council of Knights and Ladies of Security,
in force. Langnecker v. Trustees of Grand Lodge A.O.U.W. of Wis.
4. This conduct in attempting to terminate her membership likewise excused deceased from attempting to comply with the law of the order which requires a member, when his council is dissolved, to make application within 60 days for a transfer card to some other council and obtain admittance as a member thereof.
The conduct of defendant in repudiating the membership of deceased likewise excused the default of plaintiffs in failing to submit proofs of death. It is well settled that a disavowal of liability by the insurer, on other grounds, after death of the alleged member, dispenses with the necessity of making proofs of death. 2 Bacon, Ben. Soc. Life Ins. § 413; Alexander v. Grand Lodge, A.O.U.W.
5. Copy of a summons and complaint was left with the insurance commissioner purporting to be in a suit brought by Getal Segal against this defendant to recover damages for breach of the insurance contract. Defendant contends that this conduct was an election by her to choose that particular remedy and to bar the right of recovery on the part of the plaintiffs in the present action. The jury, under instructions from the trial court, found that no action was *202
ever in fact commenced. Whether the evidence sustains this finding we need not stop to inquire, for if such an action was commenced it was no bar to this one. We are not favored with the facts as to the disposition made of this action claimed to have been commenced over four years ago, but it is clear that we cannot assume either that it resulted in a judgment in favor of the plaintiff or that the plaintiff derived any benefit therefrom or defendant suffered any detriment. The rules governing cases of this sort are well settled. A person may have two courses open to him to redress a single wrong, but he can never have double redress. The two courses may be so inconsistent that the choice of one is an irrevocable waiver of the other as soon as the choice is made, as, where property is taken in proceedings instituted without jurisdiction, the owner may repudiate the proceeding or appear in it and assert his rights. The latter course waives beyond recall the right to question jurisdiction. Rheiner v. Union Depot, Street Ry. T. Co.
W. 521. This is the principle applicable to the facts of this case. The remedy on the contract to recover the amount of the insurance and that for damages for the breach of the contract are both in affirmance of the contract. They are alternative remedies but not inconsistent. Both cannot be carried to judgment and satisfaction, but the mere commencement or pendency of one is not a plea in bar in the other.
Order affirmed.
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