Langlois v. Ass'n Canadoamericaine

• Decision Date: 28 June 1919
• Citation: 108 A. 289
• Parties: LANGLOIS v. ASSOCIATION CANADOAMERICAINE.
• Court: New Hampshire Supreme Court

108 A. 289

LANGLOIS

v. ASSOCIATION CANADOAMERICAINE.

Supreme Court of New Hampshire. Coos.

June 28, 1919.

Transferred from Superior Court, Coos County; Marble, Judge.

Action on policy of life insurance issued to Prank Langlois by Josephine Langlois against the Association Canado-Americaine. Subject to exception, nonsuit was ordered on defendant's engagement that if exception were sustained, there should be judgment for plaintiff. Transferred to Supreme Court. Judgment for plaintiff.

The defense was that the insured had not complied with the by-law requiring him to pay $2.66 each month and that he was under suspension for nonpayment of the assessment or dues for December, 1916. Upon the defendants' motion for nonsuit, the plaintiff claimed there was evidence of a waiver of the by-law requiring monthly payments.

Ovide J. Coulombe, of Berlin, for plaintiff.

Joseph E. Lachance, of Manchester, George P. Rich, of Berlin, and Robert W. Upton, of Concord, for defendants.

PARSONS, C. J. The by-law of a fraternal insurance company such as is here relied upon is a stipulation of the contract which may be waived. Downs v. Knights of Columbus, 76 N. H. 165, 80 Atl. 227. Such waiver is proved by evidence tending to show the stipulation had been abandoned so that it was no part of the contract sued upon (Salvail v. Foresters, 70 N. H. 635, 50 Atl. 100; Dunn v. Ins. Co., 69 N. H. 224, 39 Atl. 1075) or of a course of conduct which would estop the defendant from now setting it up (Lally v. Ins. Co., 75 N. H. 189, 72 Atl. 208; Appleton v. Ins. Co., 59 N. H. 541, 546, 47 Am. Rep. 220). Upon the latter proposition the case cannot be distinguished from Lally v. Ins. Co.

Although the by-law required payment of the monthly dues before the last of each month, the evidence was that in 1916 the officer designated by the defendants to collect the dues accepted payment from Langlois of two months at a time, one month being overdue, three times in 1916 and five times in 1914 and 1915, without objection, remonstrance, or suggestion that he was in any way in default. From this evidence the jury would be justified in inferring that the insured had been led to believe that payment once in two months was all that was necessary to keep the policy in force. Having by their course of business authorized this belief in the insured, reasonable men might conclude the insurers could not equitably be permitted to insist upon the forfeiture or suspension which would follow a strict application of the by-law. Langlois paid his November assessment. The time permitted for the payment of the assessment for January, 1917, had not expired. Payment of the December assessment any time in January would have been a compliance with the contract for December such as the defendants accepted for August, May, and March, 1916, and for five other months in the two years preceding. This evidence the defendants attempt to answer by calling attention to by-law No. 201:

"Any member suspended for...