Helling v. United Order of Honor

• Citation: 29 Mo.App. 309
• Parties: CHRISTINE HELLING, Respondent, v. THE UNITED ORDER OF HONOR, Appellant.
• Decision Date: 17 January 1888
• Court: Court of Appeal of Missouri (US)

29 Mo.App. 309

CHRISTINE HELLING, Respondent, v. THE UNITED ORDER OF HONOR, Appellant.

Court of Appeals of Missouri, St. Louis.

January 17, 1888

APPEAL from the St. Louis Circuit Court, HON. SHEPARD BARCLAY Judge.

Reversed and remanded.

WALTER F. MCENTIRE and WM. C. & JAS. C. JONES, for the appellant: There was no evidence upon which the case could properly go to the jury, and defendant's instruction for non-suit should have been given. The certificate on which plaintiff's right of action is bottomed, distinctly provides that the sum of three thousand dollars shall be paid out of the mutual aid fund. Nothing in the petition alleges the existence of this fund, and no attempt is made on the trial of the case to prove its existence. Smith v. Mut Ben. Ass'n, 24 F. 685; Curtis v. Mut. Ben Ass'n, 48 Conn. 98; Griffin v. Pratt, 3 Conn. 513. The certificate provides that it shall only be in force and binding when signed by the member, otherwise it shall be null and void. The policy was never signed by the member. This is shown on its face. The respondent has, therefore, failed to show that any contract was ever entered into by appellant. McCully v. Ins. Co., 18 W.Va. 782, 786; Kohn v. Life Association, 28 F. 705; Misselhorn v. Life Association, 30 F. 545; Fire Ins. Co. v. Roessle, 1 Gray [Mass.] 336; Noyes v. Life Ins. Co., 1 Mo.App. 584; Schwartz v. Ins. Co., 18 Minn. 448; Life Association v. Kennedy, 6 Bush 450; Marks v. Ins. Co., 117 Mass. 528; Bertaud v. Ins. Co., 13 La. Rep. 539; May on Insurance, secs. 43, 44, 45; Baldwin v. Ins. Co., 56 Mo. 151; Badger v. Ins. Co., 103 Mass. 244; Linn v. Burgoyne, 13 B. Mon. 400; Taylor v. Ins. Co., 9 How. 390; Markey v. Ins. Co., 118 Mass. 178; 126 Mass. 158; Heiman v. Ins. Co., 17 Minn. 153; Ins. Co. v. Willetts, 24 Mich. 268; Bliss on Insurance, p. 210, sec. 147; Schwartz v. Ins. Co., 18 Minn. 448; Schaffer v. Ins. Co., 89 Pa.St. 296. Is there any testimony in the case which shows, or even tends to show, in the slightest degree, that the representations made by the defendant, which brought about the compromise, were false, or that he knew them to be false? In order that the verdict of the jury may stand, it is necessary that there should be at least some evidence proving, or tending to prove, both of these facts. Anstee v. Ober, 26 Mo.App. 669; Brown v. Wood, 19 Mo. 475; Chandler v. Fleeman, 50 Mo. 239; Dunn v. Dunnaker, 87 Mo. 601; 1 Greenl. on Evid., sec. 442, and note; Holbrook v. Mix, 1 E. D. Smith, 154. The plaintiff has twice failed to establish a cause of action. All the evidence of which the case is susceptible is before the court. This evidence clearly shows that plaintiff has no standing in court, and this tribunal should enter an order dismissing the case.

I. C. TERRY, for the respondent: Payment of part of a debt in satisfaction of the whole debt is no liquidation, and an agreement to receive it is nudum pactum. Bliss v. Schwartz, 12 U. S. [L. R.] 592; Howard v. Norton, 12 U. S. [L. R.] 656. An agreement to settle an existing debt will fail, for want of consideration, unless some advantage or benefit accrued to the creditor, or detriment to the debtor other than what springs out of the original contract. Molyneaux v. Collor, 2 L. R. [O. S.] 379; Webb v. Stuart, 11 L. R. [U. S.] 529; Reilly v. Kershaw, 52 Mo. 226; Mullin v. Morton, 23 Mo.App. 539; 2 Parsons on Contracts, 682. Whenever fraud is the matter in issue, any unusual clause in the instrument, any unusual method of transacting the business, apparently done to give the transaction an air of honesty, is, itself, a badge of fraud. Baldwin v. Whitcomb, 71 Mo. 651; Houts v. Shepard, 79 Mo. 144. A wilful statement, even though made in ignorance of the truth, is the same as the statement of a known falsehood. Delaney v. Rogers, 64 Mo. 200; Drum v. White, 63 Mo. 185; Smith v. Burchard, 2 Mo.App. 494; Baker v. Scudder, 56 Mo. 272; Pomeroy v. Benton, 57 Mo. 548; Custer v. Ober, 26 Mo.App. 669; Dunn v. White, 63 Mo. 181; Caldwell v. Haney, 76 Mo. 254; Bank v. Crandall, 87 Mo. 208. The certificate provides " that the member is entitled to a benefit of three thousand dollars, which shall be paid in case of death." The condition is absolute, the payment is absolute. The designation of a certain fund out of which it shall be paid is to control the officers of the corporation, and is for their benefit. Neosho v. Ass'n, 15 N.W. 683; Bertaud v. Ass'n, 4 Mich. 424.

OPINION

ROMBAUER J.

The plaintiff recovered judgment for fifteen hundred dollars against the defendant, being the balance claimed by her as the beneficiary named in the following certificate:

" No. 6,996. $3,000.00

Supreme Lodge United Order of Honor.

Seal. ____________________

Mutual Aid Fund Certificate.

This certifies, that George Kroenlein is a member of the United Order of Honor, and entitled to all the rights and privileges of membership, and a benefit not exceeding $3,000 from the mutual aid fund of said order, which shall, in case of total disability, be paid to self, or, in case of death, to Mrs. Christine Helling (mother), in the manner and subject to the conditions set forth in the laws governing said mutual aid fund, and in the application for membership.

This certificate to be in force and binding when signed by the member, with the signature of the president and recording secretary, and the seal of subordinate lodge affixed, so long as said member shall comply with the requirements of the constitution, laws, and regulations adopted for the government of the order; otherwise to be null and void.

In witness whereof we have hereunto attached our signatures and affixed the seal of the Supreme Lodge, United Order of Honor, this 30th day of September, A. D., 1885.

Attest:

THOMAS E. BOYD,

Subordinate Supreme President.

Lodge Seal. ERNEST DUDEN,

Supreme Secretary.

I hereby accept this certificate on the conditions named therein:

................................

Signature of Member.

Witnessed and delivered in our presence:

A. H. GILSINN, President.

R. H. SIMPSON,

Recording Secretary of Triumph Lodge, No. 136."

The petition states that the assured, George Kroenlein, died November 16, 1885, being a member in good standing and having complied with all the rules and regulations of the order; that defendant did pay to plaintiff fifteen hundred dollars, on account of said certificate, on or about May 1, 1886, but refuses to pay the balance, wherefore she sues.

The answer admits that the defendant is a benevolent organization, and that it issued to George Kroenlein a certain certificate numbered and dated as alleged in plaintiff's petition; denies that said certificate was ever signed by the subordinate lodge officers, and denies each and every other allegation in the petition contained. For further answer, defendant alleged that, shortly after the death of Kroenlein, defendant's officers were placed in possession of certain information which they had every reason to believe, and did believe, and that said information was to the effect that said Kroenlein had made false and fraudulent representations in the application for said certificate; that, relying upon and confiding in the truth of said information, defendant maintained that it was in no way liable to plaintiff on account of said certificate; that, after a conference between plaintiff and defendant's president, it was agreed that in order to avoid litigation and the costs and expenses attendant thereon, the defendant would pay plaintiff fifteen hundred dollars, and that plaintiff would accept said sum in full satisfaction of her claim against defendant; that, in pursuance of said agreement, defendant did, on the twenty-second day of April, 1886, pay plaintiff said sum of fifteen hundred dollars in full payment and satisfaction of her claim against defendant.

Plaintiff's reply to defendant's answer states that plaintiff has no information on which to base a belief as to whether defendant's officers were placed in possession of certain information which they believed, to the effect that the said Kroenlein had made false and fraudulent representations in his application for said certificate, and denies that defendant relied on said information; admits that defendant denied liability to plaintiff in the sum mentioned in said certificate; admits that, after a conference between plaintiff and defendant, it was agreed that plaintiff should accept fifteen hundred dollars, in full satisfaction of her claim against defendant, on account of said certificate, and that, in pursuance of said agreement, defendant did, on the twenty-second day of April, 1886, pay to plaintiff the sum of fifteen hundred dollars, and that the same was accepted by plaintiff in full of said claim.

" Further replying, plaintiff alleges, that, on April 26, 1886 defendant's president, one Wishard, falsely and fraudulently represented that no assessment had been paid into the treasury of defendant to pay said claim; that he also represented to plaintiff that said Kroenlein's application for said certificate was irregular and incomplete, so as to render the same void; that the medical examiner's report in said application was not properly filled out and signed; that said Kroenlein made false statements in the medical examiner's certificate and application; all of which and other representations made by said Wishard at the time were false, and known by said Wishard to be so; that said Wishard, through one Nidelet, made certain other false representations upon which plaintiff relied, and which were not known to her to be false; that, by artifice, deception, and other cheats, and by menaces and violent speech and manner frightening plaintiff and taking...