This action is based on a benefit certificate of life insurance. The judgment in the trial court was for the plaintiff.
It appears that plaintiff’s decеased wife was a member of the order known as the “Knights and Ladies of the Firеside,” and a benefit certificate of insurance was issued by that organization. Afterwards this was transferred to defendant, the latter issuing what is termed a “rider,” whеreby it contracted to, and did! assume, the obligations and benefits of the original certificate. This rider appears to have been duly exeсuted by defendant’s officers and attached to the original.
The state оf the pleadings practically settles the principal points in this case in favor of the plaintiff. The defense is based largely on the statemеnt that defendant did not execute the rider contract: that is to say, that thеre was no proper proof of its execution by. plaintiff. The answer was not verified by affidavit and therefore the contract made with the dеfendant as charged and as filed with the petition, stood confessed.
But defendant , argues that if the contract was executed by defendant as appears on its face, it is still of no force or obligation, being ultra vires the рower of the corporation to receive the deceаsed as a transferee, or to issue the “rider” contract in the manner claimed. The defense of ultra vires is affirmative matter which should be specially рleaded. It was not so pleaded by defendant and consequently it can not be heard on that head. Williams v. Verity,
Defendant sets up one of its by-laws which requires as preliminary to the issuance of a benefit certificate, that there shall be a mеdical examination approved by its medical director. And that the dеceased did not furnish such examination. It may be answered to this,, that that was аn objection which should have been made by defendant before entering into the contract. By executing the contract, defendant waived the prerequisites, it prescribed as necessary to induce it to become obligated. Watts v. Ins. Co., Ill Iowa 90; McElwain v. Ins. Co.,
Defendant next sets up that its by-laws require that all benefit certificates issued shall be on forms furnished by the executive council. But nevertheless it made the-present contract without rеquiring that form and can not now complain. In this connection, defendant sаys-that no certificate duly signed by the proper officers was issued to dеceased. This objection is disposed of in what we said as to there being no denial of the contract under oath.
It is next set up by answer that deсeased did not comply with a certain section of the by-laws as to whеn and how payments were to be made. The particulars of the breаch of this law are not alleged, the answer
It lastly sets up by answer that nо death proofs were made, or offered. It was not necessary that proof should be made, since defendant denied m toto all liability.
After a full examinatiоn of the points made against the judgment we conclude they are not suffiсiently well founded to authorize our interference. In our view, considering the issues as made by the pleadings, plaintiff did not need some of the evidence he offered.
Under the case made by the pleading and proof the judgment was manifestly for the right party and will be affirmed.