98 Iowa 118 | Iowa | 1896
Lead Opinion
Some facts disclosed by the record, which are without dispute, should be stated at the outset. The assessments numbered 63, 64 and 65, were mailed to, and received by John McGowan. No payment, nor offer of payment, was made on any of them until November 13, 1893. On that day, one Holmes went to the person designated in the assessment notices (W.A. McConkie), and paid the amount of the three assessments (63,64 and 65), and took a receipt therefor, as received from John McGowan. What was said at the time of the payment is stated by McConkie, in his testimony, as follows; “Q. Please state the conversation between you and Mr. Holmes at that time, in regard to this mattter of the payment of the money? A. He said Mr. McGowan had died this afternoon, and on looking over his receipts he had found he had been back two assessments, and he come to see if he could pay them. I told him I didn’t believe the company would receive the money, but, if he desired, I would send it in. I had sent in all the previous assessments on Saturday, but he wanted me to send in his assessment; and I told him I would do so, and if they didn’t accept it, they would, undoubtedly, send it back to him. He was to pay the expense of transmission. That was the agreement, and that was carried out. I also told him I would write a letter to Mr. Rowland, stating the case to him.” It then appears that McConkie forwarded the money to the grand secretary, with information that McGowan died that afternoon; and the money was promptly returned, with the words that, if alive and well, he would have to pass an examination before he could be reinstated. With our view of the case, the last two assessment notices are of vital importance, and we set out the important part of the last one; the other being the same, except it was dated October 1, and payment'was to be made by November 2,1893. It is as follows: “Assessment
It is the law of the order that a member not in good standing is not entitled to share in the benefit fund, and one suspended is not in good standing. It is an express provision of the law, which is a part of the contract fixing the conditions ol membership, that, if assessments are not paid with tu thirty days after the notice thereof, the member stands suspended. This condition is fixed by the section of the law quoted in our statement of facts. Hence, McGowan, after October 1, 1893, was a suspended member, unless the notices had the effect to relieve him therefrom. McGowan’s relation to the order on and after October
Concurrence Opinion
I concur in the judgment of the affirmance, but place my judgment upon grounds not discussed in the opinion. I am not willing to assent