Clarke v. Schwarzenberg

• Decision Date: 16 October 1895
• Citation: 164 Mass. 347,41 N.E. 655
• Parties: CLARKE v. SCHWARZENBERG et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

164 Mass. 347

41 N.E. 655

CLARKE v. SCHWARZENBERG et al.

Supreme Judicial Court of Massachusetts, Suffolk.

October 16, 1895

COUNSEL

Bumpus, Trask, Simes & Adams, for plaintiff.

Alfred Hemenway and W.N. Buffum, for defendant.

OPINION

ALLEN J.

It was held in 162 Mass. 98, 38 N.E. 17, that under the statutes in force when the certificate in this case was issued a member could not designate one who was merely a creditor as a beneficiary, and that there was nothing in the subsequent legislation which made the designation of Clarke valid, and that, therefore, as the case then stood, the plaintiff was not entitled to recover any part of the proceeds of the certificate of membership. After that decision the plaintiff was allowed to amend his bill by introducing certain new grounds upon which he sought to recover. At the trial it appeared that the member, Schwarzenberg, failed 16 times to pay assessments seasonably, and, upon his application, was reinstated after each failure, but no new certificate was issued. On some of these occasions the overdue assessments were paid by the plaintiff, but this does not entitle him to recover upon the certificate. Commandery v. Merrick, 163 Mass. 374, 40 N.E. 183, and cases there cited. The justice before whom the case was tried found that in these several instances the reinstatement was by way of a new contract, and not by way of a waiver of the forfeiture; subject, however, to the question of law whether the evidence warranted that conclusion. Upon an examination of the evidence a majority of the court is brought to the conclusion that it is not sufficient for that purpose. The eighth condition in the certificate provides that after a forfeiture "said party may again renew his connection with the association by a new contract made in the same manner as the first, or, for valid reasons to the officers of the association (such as a failure to receive notice of an assessment), he may be reinstated by paying assessment arrearages." This seems to imply that when the reinstatement is by a new contract a new certificate shall be issued, and that unless this is done the reinstatement is merely by way of waiver of the forfeiture.

The supposed new contract relied on by the plaintiff consisted of oral assurances of Olney, the defendant's soliciting agent, to the plaintiff, which were to the general effect that the policy would be ample security for what Schwarzenberg might owe him, and the pencil memorandum made by Litchfield, the secretary and assistant treasurer of the association, upon a small piece of paper, which was pinned to the original application of Schwarzenberg. This was as follows: "Mr. Olney says Clarke ought to be protected. So do not assign policy...