This is
an action brought by George W. Beatty, the plaintiff in
error, to recover from the defendant the sum of $4,000 on a
certificate or contract of insurance upon the life of Edwin
L. Smith, a debtor of the plaintiff. The certificate of
insurance declares that:
'In
consideration of the application for this certificate of
membership, * * * and in further consideration of the
admission fee paid and of the dues for expenses to be paid
on or before the sixth day of May in every year during the
continuance of this certificate, and of the further payment
of all mortuary assessments, payable at the home office of
the association in the city of New York within thirty days
from the day of the date that each assessment is ordered
the Mutual Reserve Fund Life Association * * * does hereby
receive Edwin L. Smith, of San Francisco, * * * as a member
of said association. Within ninety days after receipt of
satisfactory evidence to the association of the death of
the above-named member during the continuance of this
certificate of membership, upon the following conditions
there shall be payable to George W. Beatty (creditor) as
his interest may appear * * * the sum of four thousand
dollars from the death fund of the association. * * * If,
at such date as the board of directors of the association
may, from time to time, fix or determine for making an
assessment, the death fund is insufficient to meet existing
claims by death, an assessment shall then be made upon
every member whose certificate is in force at the date of
the last death assessed for, and said assessment shall be
made at such rates, according to the age of each member, as
may be established by the court of directors, and the net
amount received from such assessment (less twenty-five per
cent., to be set apart for the reserve fund) shall go into
the death fund. * * * The entire contract contained in this
certificate and said application, taken together, shall be
governed by, subject to, and construed only according to
the constitution, by-laws, and regulations of said
association and the laws of the state of New York. * * *
This certificate is also issued and accepted subject to the
express condition that if any of the payments above
stipulated shall not be paid when due, at the home office
of the association in the city of New York, or to an agent
of the association furnished with a receipt signed by its
president, secretary, or treasurer, * * * the consideration
of this contract shall be deemed to have failed, and this
certificate shall be null and void, and all payments made
thereon shall be forfeited to the association.'
The
constitution and by-laws, among other things, provide that:
'The
corporate powers of the association shall be vested in the
board of directors, who shall have power to adopt such
rules and regulations as they deem necessary, not
inconsistent with this constitution or by-laws, and to
amend the same; and to fix the amount and rate of
assessments, fees, and dues; and to enact rules and
regualtions for the government of officers and employes,
and for the management of the affairs of the association.
The directors shall elect three of their number, who shall
constitute an executive committee, who shall * * * have the
power to make contracts * * * for the furtherance of the
business of the association and for the benefit of its
members. And, under the regulations of the board, they
shall also exercise a general supervision over the business
of the association. ' Article 11, Sec. 5. 'On the
first week days of the months of February, April, June,
August, October, and December, of each year (or at such
other dates as the board of directors may, from time to
time, determine), an assessment shall be made upon the
entire membership in force at the date of the last death of
the audited death claims prior thereto, for such a sum as
the executive committee may deem sufficient to meet the
existing claims by death, the same to be apportioned among
the members according to the age of each member. * * * A
failure to pay the assessment within thirty days from the
first week of February, April, June, August, October, and
December (or within thirty days from the day of the date of
such periods as may be named by the directors), shall
forfeit his membership in this association, with all rights
thereunder, and the certificate of membership shall be null
and void.'
The
certificate in question was issued May 15, 1884. Plaintiff
paid all the assessments made by the association, to-wit,
assessments 15 to 42, all of which were made, as provided for
in the constitution, by the executive committee. On March 27,
1889, the executive committee made an assessment, or call,
known as 'Mortuary Call No. 43,' which became due and
payable May 1, 1889. Due notice of this call was sent to and
received by plaintiff. It contained, among other things, the
following statement:
'The
sending of this notice shall not be held to waive any
forfeiture or expiration of membership caused by the
nonpayment of any previous annual dues or mortuary calls.
The above mortuary call is now due, and should
be paid at once. If not paid on or before May 1, 1889, the
policy will expire, and become and be null and void.'
C. T.
Park was the local treasurer of the association. He was also
the cashier of a bank at San Jose, Cal.
Plaintiff
testified as follows:
'Upon
receiving notice of call 43, I paid it to Mr. Park, agent of
the company. He refused to accept the money as payment of
call 43 * * * until he heard from the company. I paid call 43
on May 3, 1889. The annual dues for that year I paid May 6,
1889, the day it was due, * * * to Mr. Park. He accepted it
subject to the decision of the company. I put the money in
his hands as the local treasurer of the company, and it was
kept there until some time in November, 1890. That money was
to pay the annual dues of that year (1889) and said mortuary
call 43. It was enough for both,-- $39.12 for call, and $8
annual dues. I wrote the company two or three letters in the
meantime. They refused to receive it, except on condition
that I furnish health certificate. He (Mr. Park) said it had
not been paid on time. * * * The financial reason why I did
not pay on the 1st of May was, I went to the bank at Los
Gatos, and the bank was closed on that day, because it was a
holiday there; and I had frequently paid a few days after,
and thought it would not matter; and I waited until the next
day. During the course of my dealing with the company I paid
late, I think, six or seven times. ' Calls Nos. 16, 17,
20, 25, 26, and 42 were paid after the 30 days had expired.
Health certificates were required in all but one of these
calls. Plaintiff further testified: 'I received another
notice of call 44 * * * about the regular time for sending
them. * * * I offered to pay it. I went to Mr. Park, and he
refused to take it, because there was money on deposit for
payment of call 43; and it was useless, he said, to take any
more money. I had the money in my pocket at the time I
tendered it in words. * * * I corresponded with them
afterwards in relation to the subsequent call. I received one
subsequent call from the company before Mr. Smith died, on
December 10, 1890. Q. This 43d call was in May, 1889,-- a
difference of 19 months. What did you do during those 19
months in regard to the payment of calls? A. As I said
several times before, Mr. Park refused the money because he
had $47 on deposit. He said it was useless to pay any more
until we adjusted that other matter, No. 43. He gave me a
blank certificate of health to have filled out and executed
by Mr. Smith. The reasons I did not have it signed were the
man was getting too old to examine him every few months, his
health was poor, and I felt they had no right to have a
health certificate at all; and the other reason was, I could
not find Mr. Smith. I could not find his address when I came
to San Francisco to look for him. I came back again, and some
months afterwards I found he was in Tacoma. But I could not
communicate with him there, and I knew the company had waived
that all along. The reason why I did not pay these calls in
time may have been because I was not in condition financially
to do so. That may be one reason. When I was in New York I
had a talk with the assistant secretary, in which he said
that California was so distant they were not particular about
time. * * * I arrived in San Jose on May 2, 1889. I went down
to the bank, where I usually found Mr. Park, and the bank was
closed. I went to gentlemen near there, and asked them if
they knew his residence, or where I might find him, and none
of them knew, and I supposed from their past action that if I
went in the morning it would be the same; that is, on May 3d.
I am sure I received mortuary call No. 44. I am not positive
whether I received 45 or not.'
The
cause was tried before a jury. At the close of all the
testimony, the court, at the request of defendant's
counsel, instructed the jury to find a verdict in favor of
the defendant. This instruction was granted upon the grounds:
(1) Because the plaintiff drew down the amounts paid to Park
in May, 1889, prior to the death of Smith; (2) because there
was no compliance with the policy on
the part of the plaintiff; and (3) because there was no
conduct on the part of the defendant waiving the forfeiture
that had occurred.
Before
GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.
HAWLEY
District Judge, after stating the case, .
1. Did
the court err in instructing the jury to find a verdict for
defendant?...
