100 Tenn. 267 | Tenn. | 1898
This suit was brought to recover on a certificate issued by the defendant order to W. H. Stewart, of which complainant was the beneficiary. Stewart died eight years before the institution of the suit, during which period complainant was a minor. There was a decree in favor of complainant rendered by the Chancellor, which was affirmed by the Court of Chancery Appeals. On this appeal from the decree of this latter Court, the error principally relied upon is that it rests upon a theory necessarily inconsistent with certain admissions of the bill of complainant, which will be hereafter particularly noticed.
The bill alleges that the father of complainant, Katie, was a member of Hermitage Lodge, one of the subordinate lodges of the defendant order, in good standing at the date of his death, on December
The bill was answered by the defendant order, and, in this answer it was admitted that W. EL. Stewart was at one time a member of Hermitage Lodge, and 'that, as such, a certificate was issued to him, of which complainant was the beneficiary, but it was denied that he was a member at the date of his death. On the contrary, it is averred that on October 28, 1888, about sixty days before his death, he became suspended for nonpayment of .assessments, and was not thereafter reinstated.
On these pleadings and the evidence adduced, the decrees of the respective Courts below were rested. It is apparent that upon the issues as thus presented, it being admitted that Stewart was a member in good standing up to' a point only sixty days before' his death, and, as such, the holder of the certificate sued on, of which complainant was named as beneficiary, that, in order to defeat a recovery in this action, the burden- was imposed on defendant of making good its averment that he had forfeited his membership, so that this certificate in favor of complainant was inoperative; and so the Court of Chancery Appeals held.
That Court, in its opinion, set out, in totidem
It is well settled that assessments in these beneficiary orders or societies must be made in exact accordance with their laws, and that provisions for forfeiture of membership by reason of nonpayment of assessments are strictly construed against the company. The member of such a society “is, as such, subject to liabilities and entitled' to privileges. His corporate rights may be subject to the control of the corporation, but his rights as a party assessed rest on the contract which is found in the constitution, rules and regulations of the order. The officers of such society or order have no right to make an assessment on a different basis than that prescribed in its laws. And the members of such societies and their beneficiaries have the right to rely upon the observance by the company of the requirements of its constitution and by-laws. Bacon
The question then recurs on the assignment of error of the defendant. Was the complainant precluded by the allegations of her bill from relying on this legal principle ? The argument of defendant, in maintaining that she is, rests upon what is claimed as the necessary implication from an averment by
The averment of the bill on which this contention rests is as follows: It was . . . his [Stewart’s] custom to send his dues by some one else rather than to carry them in person. A short while before his death, Mr. Stewart sent what he owed the Hermitage Lodge- to Mr. J. K. Hume, who was the proper officer to receive the same. Mr. Hume accepted the money, and gave Mr. Witherspoon, the bearer, a receipt therefor. Shortly after this, Mr. Hume called at the residence of Mr. Stewart and told Mrs. Stewart that there was a mistake abput the receipt; that Mr. Stewart could- not make a valid payment of his dues without coming to the lodge in person. Mrs. Stewart, supposing that such would be necessary, had the receipt returned to Mr. Hume, and accepted the money that had been paid to Mr. ■Hume. The complainant, therefore, charges that the payment originally made, and which was receipted for, was a valid and binding payment of all money rightfully due to the Hermitage Lodge, and she further charges that the return of the receipt did not affect complainant’s right to recover in this suit. The complainant charges that her right to recover is full, perfect, and complete, and that defendant, by a payment once accepted, is estopped from denying this claim.”
We think, if the bill had averred that Mr. Stewart had sent his agent to pay the assessments for the nonpayment of which the _ defendant predicates its right to maintain forfeiture, that this would have been at least a waiver of any defect or irregularity in the matter of notice of the assessment required by the rules. Hansar v. Supreme Lodge, 140 Ill., 301. But it is not the want of' notice, but the lack of proof of a legal assessment in the way of its maintaining- this defense, and the averment in the bill fails to supply this fatal defect.
By reference to the clause of the bill already set out, it will be seen that it is ‘ * dues ’ ’ to his order which Mr. Stewart was in the habit of sending by others to the proper officer of his lodge, and that on the occasion in question, the money intrusted to his friend was to pay what he ‘ ‘ owed ’ ’ to his order, and that it was sent by this agent to pay all that was ‘ ‘ rightfully due to the Hermitage Lodge.” Thus it appears that the paragraph on which the defendant seeks to rest its estoppel, in pleading, on complainant, does not, by its terms, include “assessments;” for “dues,” in such associations, are clearly distinguished from ‘ assessments. ’ ’
Again, it is insisted that complainant’s claim is stale, and, therefore, it should be repelled. To this, it is a sufficient answer to say, that upon the death of W. H. Stewart, a member in good standing with defendant order, it became the debtor of complainant in the amount of the beneficial certificate, and that nothing short of the statute of limitations could bar her, and this statute has not run because of the continued minority of complainant.
The decree of the Court of Chancery Appeals is affirmed.