Bailey v. Mut. Ben. Ass'n

• Decision Date: 21 April 1886
• Citation: 27 N.W. 770,71 Iowa 689
• Parties: BAILEY AND OTHERS v. MUTUAL BEN. ASS'N.
• Court: Iowa Supreme Court

71 Iowa 689

27 N.W. 770

BAILEY AND OTHERS

v.MUTUAL BEN. ASS'N.

Supreme Court of Iowa.

Filed April 21, 1886.

Appeal from Pottawattamie circuit court.

Action to recover upon a certificate of membership in the defendant company. There was a trial to the court, and judgment was rendered for the plaintiff. The defendant appeals.

BECK, J., dissenting.Flickinger Bros., for appellant, Mutual Ben. Ass'n.

M. Remley and C. H. Scott, for appellees, Joseph Bailey and others.

ADAMS, C. J.

The plaintiffs averred that they are the legal heirs of Vincent J. Bailey, deceased; that he died intestate; and that at the time of his death his life was insured in the defendant company by a contract by which it agreed to pay his heirs “the net proceeds of one full assessment upon all members in good standing at the date of his death, not to exceed $3,000.” The defendant pleaded a general denial, and also that the contract of insurance had lapsed by non-payment of an assessment.

1. Before proceeding to the determination of the other questions involved, it is proper that we should say that the plaintiff filed a motion to strike the evidence from the abstract because it does not appear that the evidence was incorporated in any bill of exceptions properly signed by the judge. By an amendment to the abstract the defendant sets out two certificates made by the trial judge, from which it appears that a bill of exceptions was signed. The abstract purports to be an abstract of all the evidence, and, in the absence of an additional abstract of the appellee, we must assume that the evidence was made of record, and that it is before us.

2. As to whether there was a default by the deceased in the payment of an assessment we need not determine. There was evidence tending to show that before the death of the deceased the company received the amount of the assessment. The court below, we may presume, so found, and the evidence was sufficient to sustain the finding. It is, to be sure, insisted by the defendant that the money was demanded and received by mistake, the real intention being to regard the certificate as forfeited. But we do not think that such mistake, if made, could be regarded as material. The defendant received and held the money until after the death of the deceased, and he had a right to regard the contract as in force regardless of any intention of the defendant to the contrary.

3. The contract called for the net proceeds of an assessment not to exceed $3,000. The assessment contemplated, it appears, is an assessment made in advance of the death which gives rise to the liability. Article 14 of the articles of incorporation is as follows: “The amount due and payable under any certificate of membership by reason of death of member named therein shall be the net amount collected on the advance assessment previous to the death of a member, and received at the principal office of the association, which amount shall, in no case, exceed $3,000.” There is no pretense that there is any averment in the petition as to what the proceeds of an assessment were as called for by the certificate, nor what the net amount of an assessment was as provided in the articles of incorporation, nor that there was an assessment at all. The plaintiffs, indeed, claim there was no assessment, and their theory is that they are entitled to recover outside of the terms of the contract, towit, the gross amount of what an assessment would have been if it had been made. But, in our opinion, their position cannot be sustained. This is a mutual association. It does not appear that it has any...