78 Cal. 49 | Cal. | 1888
— Action by the assignee of the heir of a member of a mutual benefit association to recover a sum of money claimed to be due upon the death of such member. The defense is, that the deceased failed to pay assessment No. 99 within the time required by the rules of the association, and that by reason of such non-payment he stood “ suspended” at the time of his death. The consequences of a suspension for over thirty days and less than three months are declared to be, that the member “ shall stand so suspended until all arrearages and fines shall have been paid to the secretary, and all other laws governing reinstatements have been complied with.V
We have no doubt that the secretary was authorized to accept the amount of the assessments paid on December 14th, notwithstanding the delinquency. The “ subordinate constitution ” provides that “ the secretary shall .... receive all money due this council.” And the
We say, then, that if the laws governing the association had not imposed other conditions of reinstatement beside the payment of the sums for which the deceased was delinquent, the acceptance of said sums by the association would be a waiver of the forfeiture. The argument for the appellant, however, is, that other conditions of reinstatement were imposed, and that a new medical certificate and a re-election were essential. It cannot be doubted that if there was a complete suspension within the meaning of the laws governing the association, a compliance with said conditions was necessary, for such is the plain provision of the laws. The real question is whether he was so suspended. And this depends upon whether the delinquency of itself (or coupled with the report thereof by the secretary) constituted the suspension, or whether a declaration or adjudication thereof by the council was necessary.
This question is not to be disposed of by the mere assertion of the secretary, or by what was put upon the assessment notice, but must be determined by the pro
The provisions which affect the question, so far as shown by the record before us, are section 2 of article 4 of the by-laws of the Vallejo council, and section 5 of article 3 of the relief laws of the supreme council. The former is, that "any member failing to pay an assessment within thirty days from the date of the recorder’s notice shall be suspended' by the council at its first meeting thereafter.” If this were the only provision, it would seem clear that some action by the council was necessary. But the other provision is as follows: “Each member shall pay the amount due to the secretary within thirty days from the date of such notice, and any member failing to pay such assessment within thirty days shall forfeit all rights and claims to benefits under the relief fund laws, and shall be reported suspended from
The provision is somewhat confused. There is first a clause that a member failing to pay for thirty days “shall forfeit” his rights. There is then a clause that the secretary shall report him to the treasurer as “ suspended from the beneficiary membership”; then that the secretary shall furnish to the council a list of the names of the delinquents, and enter such names upon the minutes of the meeting (a failure to do which, however, is not to affect the suspension); and finally, that the council shall declare the delinquent member suspended, and that he shall stand “so suspended” until certain conditions have been complied with. All this is sufficiently obscure. If the non-payment alone, or coupled with the report of the secretary, is to constitute the suspension, what was the use of a declaration or adjudication by the council? This may be pertinently asked. And it may be plausibly argued that “a condition involving a forfeiture must be strictly interpreted against the party for whose benefit it is created” (Civ. Code, see. 1442; Medical Society v. Weatherly, 75 Ala. 248); and consequently that doubts and ambiguities must be resolved in favor of the plaintiff; and that reading the clauses together, the declaration by the council is essential to the completion of the process of suspension. On the other hand, it may be argued with equal
We do not find it necessary to express an opinion as to the relative merit of these somewhat nicely balanced arguments. The most favorable view for the appellant is the latter; and for the purposes of this opinion, we shall assume that such is the proper construction of the provision. But in this view it is clear that the conditions of reinstatement prescribed by the provision, viz., a new medical certificate, and a re-election by a four-fifths vote, apply only to a suspension by the council from all the privileges of membership, and not to a suspension from the “beneficiary membership” arising from delinquency and a report by the secretary. Said conditions are placed after the clause as to a suspension by the council; and it is only when the member is “so suspended” that they apply. Leaving out these conditions, the only difficulty in the way of the plaintiff’s recovery was the forfeiture for non-payment. And this, we have seen, was waived by the acceptance of the sums due.
We do not consider the cases cited by the learned counsel for the appellant as in conflict with the conclusion we have reached. It is unnecessary to examine the other positions taken by the respondent.
Foote, C., and Belcher, C. C., concurred.
For the reasons given in the foregoing opinion, the judgment and order are affirmed.