Spande v. Western Life Indemnity Co.

Lead Opinion

MR. Justice Burnett

delivered the opinion of the court.

1. The substance of the complaint is that the defendant, by an agreement made directly with the plaintiff, undertook to assume and discharge the obligation of the Order of Washington to him. By his own statement, he says that he accepted the certificate of membership issued by the order in lieu of the one previously issued to him by the Washington Co-Operative Life Insurance Association. Although, as pleaded, the first certificate may have provided for the payment direct to plaintiff of the sum of $2,000 at the end of the 20-year period, or to his beneficiary in case he died sooner, in the one substituted for it by the Order of Washington the benefit does not inure to the plaintiff. By this latter certificate, the order does not stipulate for payment of any sum of money in any event to the plaintiff, but only to his wife. In any view of the case, she, or her successor in interest, is the only one who could recover on the substituted certificate. Here the plaintiff asks to recover in his own right on an obligation in favor of another, without pleading an assignment to himself of that other’s cause of action. The stipulation of the instrument is that “the Order of Washington agrees that after the maturity of this certificate of membership occasioned by the death of the member or otherwise, one assessment * * not exceeding in amount the sum of $2,000.00 will be paid as a benefit tp Emily Weokoline Larsen Spande, bearing relationship of wife.” This does not furnish ground for recovery by plaintiff, for the action must be brought in the name of the real party in interest, who, in this case, appears to be plaintiff’s wife. Section 27, L. O. L.

2, 3. Again, the legal effect of the contract pleaded by the plaintiff is that the defendant agreed with him to answer for the debt, default, or miscarriage of the Order of Washington; that is to say, in substance, at the end of the 20-year period, providing the plaintiff had complied with the terms of the contract on his part, there would then be a debt of $2,000 owing from the Order of Washington to him, or his beneficiary; and, according to the complaint, the substance of the contract on the part of the defendant was to answer for this possible debt of the Order of Washington. This matter being traversed by the answer, it was incumbent upon the plaintiff to prove his allegation in that respect by such evidence as the statute of frauds requires, viz., an agreement in writing, or some note or memorandum thereof, expressing the consideration, and signed by the defendant or its lawfully • authorized agent. Section 808, L. O. L. As evidence of the contract alleged, the plaintiff introduced three letters purporting to be signed by J. L. Mitchell, as “Manager of the Order of Washington Department, Western Life Indemnity Company.” The signature of Mitchell, as well as his authority to sign, so as to charge the defendant, were both challenged by proper objections on the part of the defendant. The only evidence on that subject offered by plaintiff was that of P. J. McMannama, as follows:

“Q. Did you ever have any dealings with J. L. Mitchell ?

“A. When?

“Q. During the time you were employed by the Western Life Indemnity Company?

“A. Yes, sir.

“Q. What position did Mr. J. L. Mitchell occupy with the Western Life Indemnity Company between February 15, 1908, and the last of the year?

“A. I could not tell you that of my own knowledge. I don’t know anything about that, only what I would infer from his correspondence and papers.

“Q. What did the company hold him out to you to be?

“Mr. Smith: We object to that. He assumes that the company did hold him out in a certain way, and we object to that as incompetent and irrelevant.

“Court: Objection overruled.

“Q. Answer the question.

“A. I understood that he had the management of the Western department of their business.

“Mr. Smith: It is understood that an exception is allowed ?

“Court: Exception is allowed.

“Q. As the manager of the Western Life Indemnity Company ?

“A. That is what I understood.

“Q. Did you have much correspondence in that regard ?

“A. Yes; considerable.

“Q. You say he was so held out to you?

“A. In a certain order of business; but if there was anything special I had to take it up with George M. Moulton.”

4, 5, 6. This testimony is not sufficient to prove any authority in Mitchell to bind the defendant. The mere understanding of the witness is hearsay. To say that Mitchell was held out by the defendant as its agent is but stating a conclusion of law. The actions or declarations of the defendant in that connection should have been disclosed, in order to determine whether they amounted to holding him out as agent. Further, although Mitchell, as a witness, would be a competent witness to prove his agency, yet his letters, or even his oral declarations reported by other witnesses, are not sufficient to establish such agency.

On the assumption, however, that his agency is proven, we pass to the letters themselves. His first letter, apparently a circular addressed “Esteemed Comrade,” without designating any one by name, after directing that quarterly dues be hereafter remitted direct to the company, proceeds as follows:

“Immediately upon receipt of your first remittance, this company will send you a ‘Guarantee Slip’ which you will attach to your Order of Washington contract. This ‘Guarantee Slip’ will be countersigned by Geo. M. Moulton, president Western Life Indemnity Company, and it agrees to fulfill all the conditions of your present certificate for one year, upon your paying your regular dues and assessments. This arrangement gives you ■double protection without additional cost. A little later you will be sent a list of the several kinds of insurance certificates issued by the Western Life Indemnity Company, and then, if you wish, you may exchange your present certificate for any certificate issued by the Western Life Indemnity Company within the year. Upon receipt of your first remittance you will be mailed an official receipt, as well as a 'Guarantee Certificate.’ Make your remittance by post office money order, bank draft or express money order.”

His letter of March 25, 1908, addressed to plaintiff says:

“Enclosed herewith please find receipts covering the amount of your remittance, and also you will find enclosed guarantee certificate to be attached to your Order of Washington certificate as per agreement entered into by and between the Order of Washington and the Western Life Indemnity Company. Kindly send your next assessments direct to this office to keep your protection well secured. The reinsurance contract is going forward successfully in every degree and every comrade’s certificate is now worth 100 cents on the dollar. We all have much cause for rejoicing over this change.”

His third letter addressed to plaintiff incloses a receipt for assessment No. 5, and, besides that, is no more than an expression of his pleasure over the good condition of the company.

Conceding, for the sake of argument, that Mitchell had authority as agent to sign for the defendant, none of the letters in evidence purporting to bear his signature, as such, contain any definite memorandum of any agreement, and certainly do not express a consideration in any sense whatever. None of them come anywhere near meeting the requirements of the statute of frauds.

It was admitted that one George M. Moulton was the president of the defendant, and his signature to the letters and documents now here referred to was admitted. These document's follow:

“Geo. M. Moulton, President. The Order of Washington Department. Western Life Indemnity Company, Masonic Temple, Chicago. Chicago, February 22, 1908. To the Comrades of the Order of Washington: You have already been officially advised by your Supreme President and Supreme Secretary that by the unanimous action of the Supreme Union of your order, and with the approval of the Insurance Department of Washington, the insurance on your life in the Order of Washington has been lawfully transferred to the Western Life Indemnity Company of Chicago. In behalf of this company, I extend to you a fraternal greeting with the glad hand of fellowship and cordial welcome into the bosom of our organization. By the payment to our company of the next monthly payment due by the terms of your present life benefit certificate you thereby become one of us and one with us, I trust until death do us part. Immediately upon our receipt of such payment, a formal agreement or guarantee will be transmitted to you for attachment to your present life benefit certificate, which will bind our company to fulfill all the obligations heretofore imposed upon the Order of Washington, under such certificates until such time as a policy for an equivalent amount can be issued on our forms and at our premium rates in accordance with the provisions of the reinsurance contract entered into between the Order of Washington and this company. Continue the monthly payments on your present certificate as heretofore' in the same amount and in the same way. By so doing you may rest assured that your rights thereunder will be fully safeguarded and adequately protected. Come with us —live with us — die with us. You will never regret either.

“Faithfully yours,

. “Geo. M. Moulton, President.”

“Western Life Indemnity Company, Chicago. Kindly attach the enclosed rider agreement to your life benefit certificate as evidence that this company has assumed liability under said certificate pursuant to the terms of the reinsurance contract entered into between this company and the Order of Washington.

“Faithfully yours,

“Geo. M. Moulton, President.”

The inclosure referred to in this last letter is as follows:

. “Western Life Indemnity Company. Geo. M. Moulton, President. Home Office, Masonic Temple, Chicago. This certifies, that all the covenants and obligations heretofore imposed and undertaken by the Order of Washington under and by virtue of a certain life benefit certificate No. 245, .issued by said the Order of Washington on the life of H. A. L. Spande are hereby assumed by the Western Life Indemnity Company to the extent and in the manner as are set forth in a certain contract of reinsurance made and entered into by and between,the Order of Washington, of Portland, Oregon, and the Western Life Indemnity Company of Chicago, Illinois, on the 15th day of February, A. D. 1908. Executed and delivered at the home office of the Western Life Indemnity Company in Chicago, Illinois, this 21st day of March, 1908.

“Western Life Indemnity Company,

“By Geo. M. Moulton, President.”

7. As in the case of the Mitchell letters, so with the Moulton letters. Neither singly nor collectively do any of them comply with the statute of frauds in expressing the consideration of the agreement alleged to have been made between the defendant and the plaintiff.

8, 9. There is still further defect in the proof of the plaintiff as based upon these letters; that is, that while frequent reference is made to an agreement entered into by and between the Order of Washington and the defendant, specifically referred to in the certificate of the defendant accompanying the letters of Moulton as “the contract of reinsurance made and entered into by and between the Order of Washington, of Portland, Oregon, and the Western Life Indemnity Company of Chicago, Illinois, on the 15th day of February, A. D. 1908,” that agreement was not introduced in evidence by the plaintiff. Not only so, but the bill of exceptions shows that it stoutly resisted introduction of any evidence whatever of that agreement on the part of the defendant. The agreement mentioned was evidently that embodied in “Exhibit A,” already quoted, and in order to complete the evidence of the contract pleaded by plaintiff, so far as it depends upon the letters and certificate which he offered in evidence, it was incumbent upon him to produce the agreement referred to in those documents. It is a rule of construction of contracts that, where an instrument refers in terms to another instrument as containing part of the stipulation between the parties, that other instrument is itself a part of the contract between the parties, and must be produced, in order to fully substantiate the allegation regarding the agreements of the contracting parties. Bradstreet v. Rich, 74 Me. 303; In re Commissioners of Washington Park, 52. N. Y. 131; Casey v. Holmes, 10 Ala. 776.

At best, the plaintiff introduced only part of his evidence regarding the contract binding the defendant, whatever it may have been, whether directly with him or indirectly with him, as one made for his benefit by the Order of Washington. On account of the action not having been brought in the name of the real party in interest, for the reason that the testimony is not sufficient within the statute of frauds to prove the contract alleged in the complaint, and also because of the omission of the contract alluded to in the documents by which the defendant sought to bind the plaintiff, the evidence was insufficient to authorize the submission of the cause to the jury; and hence the judgment of the court below is reversed, and the cause remanded for further proceedings not inconsistent with this opinion. Reversed.

Mr. Justice McBride did not participate in the decision of this case.

Argued February 28, decided March 19, 1912.

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Rehearing

On Rehearing.

[122 Pac. 38.]

For appellant there was a brief over the names of Messrs. John H. & A. M. Smith and Edward & A. R. Mendenhall, with an oral argument by Mr. John H. Smith.

For respondent there was a brief over the names of Messrs. Charles W. & George C. Fulton, with an oral argument by Mr. George C. Fulton.

Mr. Justice Burnett

delivered the opinion of the court.

This case was originally submitted on briefs without oral argument, and a decision was rendered reversing the judgment of the circuit court and remanding the cause for further proceedings. (117 Pac. 973). On motion of the plaintiff a rehearing was granted, and counsel have been heard orally.

In pursuance of some oral stipulations made in the circuit court between counsel, but of which no memorandum appears in the record before us, counsel for defendant at the argument on rehearing waived the question of whether the plaintiff is entitled to recover in his own name on an instrument providing for payment of money to his wife and not to him in any event. The principal contention presented by plaintiff on rehearing was that the circular letter dated Chicago, February 22, 1908, addressed generally “To the Comrades of the Order of Washington,” with the peroration “Come with us, live with us, die with us, you will never regret either. Faithfully yours, George M. Moulton, President” — quoted in our former opinion, is itself sufficient proof of the allegations of the complaint to take the case to the jury as against defendant’s motion for a nonsuit.

10. Such a motion being in effect a demurrer to the evidence of the plaintiff, it is the duty of the court to consider all the testimony and to construe the writings, and all of them, introduced by plaintiff in support of his case. Adverting to the allegations of the complaint which are quoted in the former opinion, we find that, according to plaintiff’s contention, the defendant bound itself absolutely at all events to the performance of all the things to be done by the Order of Washington. The circular letter in that respect merely proposes on receipt of a certain payment to issue a formal agreement or guaranty binding the company to fulfill the obligations of the order “until such time as a policy for an equivalent amount can be issued on our forms and at our premium rates in accordance with the provisions of the reinsurance contract entered into between the Order of Washington and this company.” This conditional offer is not proof of the absolute liability alleged in the complaint. The sum and substance of this circular letter is that the membership of the Order of Washington is informed that measures have been inaugurated looking to a novation, whereby the order is to be released from its obligation to its members, who are to accept the company, instead of the order, and the company is to assume the obligations in question in consideration of specified payments to it by the individual members of the order. It invites the comrades of the order to participate in the proposed novation, all the time referring to the reinsurance contract between the company and the order as the standard by which the liability of the company is to be ultimately measured. The circular is nothing more than negotiation on the part of the company and does not amount to a contract.

11. Even construing it as an offer, it points out as part of the offer that the contract on the part of the company must be in the form of a writing to be attached to the membership certificate, embodying particular conditions. Under such circumstances there is no contract until the offer is accepted and the writing executed and delivered. Stanton v. Dennis (Wash.), 116 Pac. 650; Ferre Canal Co. v. Burgin, 106 La. 309 (30 South. 863) ; Donnelly v. Currie Hdw. Co., 66 N. J. Law, 388 (49 Atl. 428). The plaintiff cannot accept the part of his offer, if it be one, which is favorable to his contention, and reject the remainder, if he expects to bind the defendant.

12. But we are not left in the dark about how the plaintiff construed the circular letter or what he did in pursuance thereof. By his own testimony, in speaking of the certificate of March 21, 1908, quoted in the former opinion, he says he received it, attached it to his policy, and kept it. Under his own statement he must be held to have accepted it. This certificate, in plain words, states that the company assumes the obligations of the order to the plaintiff “to the extent and in the manner as are set forth in a certain contract of reinsurance made and entered into by and between the Order of Washington of Portland, Oregon, and the Western Life Indemnity Company of Chicago, Illinois, on the 15th day of February, A. D. 1908.” This agreement between the order and the company thus became a governing part of the contract by novation between the plaintiff and the defendant. Donnelly v. Adams, 115 Cal. 129 (46 Pac. 916). Whether the defendant contracted with the plaintiff in the absolute terms averred in the complaint depends upon the provisions of the contract between the order and the company, and the case of plaintiff in the testimony is not made out without it.

13. The plaintiff was not bound to accept the offer of the defendant in lieu of the promises of a moribund insurance order; but, having accepted, he cannot adopt the part favorable to him and reject the remainder.

14. The plaintiff has declared upon an alleged contract. His evidence must correspond to his allegations, if he would prevail on the general issue. Furthermore, if he would establish a liability against the defendant, he cannot stop short of disclosing to the court all the conditions upon which the liability was assumed and by which it was to be measured.

It is unnecessary to notice the numerous other assignments of error. The motion for nonsuit should have been allowed. We adhere to the former opinion.

Reversed.

Former opinion adhered to.

Mr. Justice McBride did not sit in this case.

Case Details

Case Name: Spande v. Western Life Indemnity Co.

Court Name: Oregon Supreme Court

Date Published: Sep 26, 1911

Citation: 117 P. 973

Court Abbreviation: Or.