33 Ill. App. 168 | Ill. App. Ct. | 1889
It is contended in support of the judgment of the Circuit Court, first, that no action at law can be maintained on the contract set out in the declaration; that the remedy is to be had in equity only. Counsel for defendant in error cite a number of cases in support of this contention, among others, Covenant Mut. Ben. Ass’n v. Scars, 114 Ill. 108. In that case the undertaking of the association as stated in the certificate was, that on the proof of the death of the member, he having complied with the conditions of the certificate, an assessment should be levied upon the surviving members to the amount of the certificate, $5,000, “ which sum so collected on such assessments the association agrees well and truly to pay,” etc. The heirs of the deceased member filed a bill in equity and one of the grounds of defense was that the court had no jurisdiction—that there was an adequate remedy at law. The court said: “ The certificate of membership does not contain any contract to pay to the beneficiaries $5,000, or any sum absolutely, but to levy assessments ratably upon all members holding certificates in force at the death of decedent, for the amount not less than the limit of the certificate, and to pay over the sum so collected on such assessments, less the collection costs. As the corporation is not organized for ‘pecuniary profit,’ has no surplus, and relies entirely upon the mortuary assessments made upon each death for the payment of benefits to the beneficiaries of a decedent, it would be difficult to realize anything by execution. * * *
“ It would seem that a court of equity might properly be resorted to as being capable of affording a more adequate remedy, by directing a specific performance of the contract of the defendant by the levying of the proper assessments.”
That case is undoubtedly an authority that where the contract is not to pay a sum absolutely, but to levy an assessment and pay the proceeds thereof, not exceeding a certain sum, to the beneficiary, equity will give redress in the nature of specific performance of the contract; but it is by no means an authority that an action at law might not be maintained on the same contract, and a judgment recovered. There is a large class of cases arising on contract, where equity will take jurisdiction as furnishing a more direct and complete remedy than the law court, yet where there is no doubt of the jurisdiction at law, if the party elects to pursue his remedy on that side of the court. In suits on certificates of benefit societies, there seems to be some contrariety in the decisions. The contracts of the different corporations differ in form. Some are absolute in the promise to pay a certain sum upon the member’s death. Others provide that upon the death of the member, the company shall only pay over the proceeds of certain assessments, not to exceed a stipulated amount. In this latter class of cases, “It is not entirely agreed what remedy is most proper, if the association denying its liability refuses to levy the promised assessment, for the authorities are not in harmony. * * * The decided preponderance of authority is in favor of the view that an action at law can be maintained against the society for a refusal or neglect to make the assessment.” Bacon, Benefit Societies, Sec. 453, and cases there cited.
The certificate sued on in this case, differs essentially from those in cases cited by counsel for defendant in error. In nearly all said cases the contract is not absolute for the payment of a certain amount, but is that the association shall levy an assessment and pay the proceeds thereof, not exceeding the amount named in the certificate to the beneficiary. Such cases are Smith v. Covenant Mutual Benefit Ass’n, 24 Fed. Rep. 685; Bailey v. Mutual Benefit Ass’n, 71 Iowa, 689; Newman v. Covenant Mut. Ben. Ass’n, 72 Iowa, 242; Burdon v. Mass. Safety Co., 17 N. E. Rep. 874; Egleston v. Association, 5 McCrary, 484; Curtis v. Mutual Benefit Life Company, 48 Conn. 98.
In most of said cases the question decided was the sufficiency of the allegations in the declaration or complaint at law, and if the contract here sued on was similar in its terms to the contracts on which the actions in said cases were brought, the decisions would be authorities in support of defendant in error’s second contention, which is that the demurrer was well sustained, for the reason that the declaration does not aver that an assessment had been made and collected, or the number of members liable to assessment, and the amount that could have been made by an assessment.
Where the contract is that the corporation shall make an assessment, and pay over the proceeds not exceeding a certain amount, it is well settled that the declaration must charge a failure or refusal to make the assessment, and that if such assessment had been made it would have resulted in the amou.nt which plaintiff claims as damages. The New Home Life Assurance Co. v. Hazen, 23 Ill. App. 457; Abe Lincoln Mut. L. & A. Society v. Miller, 23 Ill. App. 341, and cases cited, supra.
The certificate here sued on is not a contract to make an assessment and pay over the proceeds, but an absolute promise and agreement to pay the amount named to the survivor, at the death of either beneficiary, etc., within ninety days after acceptance and approval of proofs of death. Sec. 5th, it is true, shows how the indemnity fund for the payment of losses is to be created and kept up, but it in no manner limits the amount payable under the certificate to what might be collected from one assessment, nor does it provide that an assessment shall be specially levied to pay a loss on any particular certificate. The scheme is to create and keep up a general fund, out of which losses shall be paid as they occur. It follows that good pleading only required the plaintiff to set out the certificate, and allege the death and the performance on his part of the conditions required of him, and that he has sufficiently done in the declaration to which the demurrer was sustained. Protective Union v. Whitt, 36 Kan. 760; Freeman v. National Ben. Society, 42 Hun, 257; Neskern v. North W. E. & L. Ass’n, 30 Minn. 406; Lueder’s Ex’r v. Annuity Co., 12 Fed. Kep. 465; Excelsior Mutual Aid Ass’n v. Riddle, 91 Ind. 84. The allegation necessary in a pleading is to be determined from the language of the contract on which the rights of the parties depend.
In our opinion the declaration is entirely sufficient in alleging a cause of action on the certificate set out, and for the error in sustaining the demurrer thereto the judgment of the Circuit Court must be reversed, and the case remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.