Gray v. Supreme Lodge, Knights of Honor

• Citation: 20 N.E. 833,118 Ind. 293
• Decision Date: 17 April 1889
• Docket Number: 13,212
• Parties: Gray v. Supreme Lodge, Knights of Honor
• Court: Indiana Supreme Court

20 N.E. 833

118 Ind. 293

Gray v. Supreme Lodge, Knights of Honor

No. 13,212

Supreme Court of Indiana

April 17, 1889

From the Marion Superior Court.

Judgment affirmed, with costs.

A. F Denny, for appellant.

W. D Bynum and A. T. Beck, for appellee.

OPINION

Olds, J.

This is an action by the appellant against the appellee on a benefit certificate issued by the appellee to Columbus V. Gray, the husband of appellant, in his lifetime, in which certificate the appellant is named as the beneficiary, for the sum of two thousand dollars, to be paid upon the death of said Columbus V. Gray out of the widows' and orphans' funds of said association, the appellee.

The complaint is in the usual form, and no question is presented upon the complaint. The appellee answered in two paragraphs. Appellant demurred separately to each paragraph for want of facts; the demurrers were overruled, and appellant excepted and assigns error.

Appellant filed a reply in two paragraphs, and a demurrer was filed and sustained as to the second paragraph, which ruling is also assigned as error.

The first paragraph of the answer alleges a mutual mistake in the issuing of the policy, whereby it was issued for $ 2,000 instead of $ 1,000, and it is contended that the allegations are insufficient, and that it is not such a mistake as can be corrected. The allegations in the answer as to the mistake are as follows: "That by the laws, rules and regulations of the association it was, and has ever since remained, the duty of each and every member, upon presenting himself to receive the third degree, or degree of manhood, to pay to the financial reporter the following rates, or one-half thereof, to wit: Between the ages of fifty-four and fifty-five, four dollars; that the decedent, at the time of presenting himself to receive the third degree, or degree of manhood, paid to the financial reporter, for the use and benefit of the widows' and orphans' benefit fund, the sum of two dollars, the same being one-half of an assessment, and entitling the beneficiary named by the decedent to the sum of one thousand dollars out of said fund upon his death, for which sum he directed a certificate to be issued to himself for the benefit of the plaintiff; that at and prior to the time the decedent became a member, said defendant had prepared and printed blank benefit certificates to members, the full-rate certificates having therein the words 'two thousand dollars,' and said half-rate certificates having printed therein the words 'one thousand dollars;' that the officer and agent of said department, in issuing the said benefit certificate to the said Columbus V. Gray, by inadvertence and mistake, used a full-rate blank, containing the words 'two thousand' instead of 'one thousand dollars,' which said deceased had contracted for and directed to be issued to him; that said decedent, by inadvertence and mistake, received and accepted said certificate containing said words 'two thousand' instead of 'one thousand dollars.' And it is further averred that all of the dues, assessments, fines, etc., paid to said defendant by or on behalf of said decedent to keep him in good standing during his said membership, as well as the assessment fees and dues paid by him upon his initiation, were paid by said decedent, and the only interest ever had or held by the plaintiff in and to said certificate, or the benefits to be paid thereon, she received and held as the voluntary grantee of said decedent, and not otherwise."

The allegations in this paragraph show that the appellee issued two classes of benefit certificates; that when a member was admitted to a certain degree in the organization he was entitled, upon the payment of four dollars, to a certificate for two thousand dollars, and on the payment of two dollars he was entitled to a certificate for one thousand dollars; that the decedent, on being admitted to the degree, paid two dollars and contracted for a benefit certificate of one thousand dollars to be issued to him, payable to his wife upon his death. It also alleges that by inadvertence and mistake the officer executed to the decedent, and he received and accepted, a certificate for two thousand, instead of one thousand, dollars. The allegations clearly show such a mutual mistake as may be corrected between the original contracting parties. It is contended by counsel for appellant that the mistake is not mutual; that it only appears to be the mistake of the appellee's agent and officer issuing the policy or certificate. The answer avers a mistake on the part of the decedent; it avers that the decedent paid two dollars, entitling him to a certificate for one thousand dollars, and that he directed a certificate to be issued to himself for the benefit of appellant. There is a further averment, that the agent issued a certificate for two, instead of one, thousand dollars, which said decedent had contracted for and directed to be issued to him. Conceding the truth of the averments in this paragraph of answer, which are admitted by the demurrer, one of two things must be true, either that the decedent by mistake received and accepted the certificate for two thousand dollars, believing it to be for one thousand dollars, which he had contracted for, or that he knew of the mistake on the part of the appellee's agent and with such knowledge received and kept the certificate; and in either event the appellee is entitled to a reformation. In the case of Roszell v. Roszell, 109 Ind. 354, 10 N.E. 114, the court says: "The agreement having been satisfactorily established, if it appears that the mistake was known to one of the parties, who, with knowledge of the ignorance of the other, nevertheless kept silent when he should have spoken, the party having knowledge will be estopped to defeat a reformation by alleging that he knew that the instrument was different from the agreement."

When...