Lawler v. Murphy

• Decision Date: 30 December 1889
• Citation: 58 Conn. 294,20 A. 457
• Court: Connecticut Supreme Court
• Parties: LAWLER v. MURPHY et al.

20 A. 457

58 Conn. 294

LAWLER

v. MURPHY et al.

Supreme Court of Errors of Connecticut.

Dec. 30, 1889.

Appeal from superior court, Hartford county.

C. E. Gross, for appellant. C. E. Perkins and A. Perkins, for appellees.

SEYMOUR, J. This is an appeal from the judgment of the superior court sustaining the defendants' demurrer. The cause of demurrer upon which the issue was found for the defendant alleges that it appears from the contract for a breach of which the suit was brought that the only agreement made therein was to pay such sum as might be received from a death assessment, and that it is not alleged in the complaint that any such sum was ever received. To understand the force of this objection, and the considerations applicable to it, it is necessary to set out the contract in full. It is as follows:

"Certificate No. 446. Benefit $1,000. Connecticut State Insurance Fund of the Ancient Order of Hibernians of the State of Connecticut. In consideration of one dollar, initiation fee, and assessments levied from time to time by the directory, Thomas Lawler, of division No. 2 of Hartford, county of Hartford, state of Connecticut, receipt of which is hereby acknowledged, and the agreement on the part of the said Thomas Lawler to accept the following conditions and rules as a part of this contract between said A. O. H. Insurance Fund and himself, hereby constitutes the said Thomas Lawler a benefit member of said A. O. H. Insurance Fund, and agrees to pay Mary Lawler, wife, if living, if not, to the heirs at law of said member, in sixty days after due proof of the death of said member, a sum received from a death assessment, but not to exceed one thousand dollars.

"Conditions: The conditions upon which this certificate is issued by the fund, and accepted by said member, are the following: First. That the statements and declarations made by and on behalf of said member in his application to become a benefit member of said fund, which are hereby referred to as a basis of this contract, and are a part thereof, and on the faith of which this certificate is issued, are in all respects true, and that no fact has been suppressed relating to his health or circumstances affecting the interests of said fund or their inducement to accept the risk. Second. That the said member must be a member in good standing in the order at the time of his death, otherwise this certificate will be null and void. Third. Any assignment of this certificate shall be void unless assented to in writing by said fund. Fourth. The death claim under this contract shall be payable in sixty days after satisfactory proof of death of said member shall have been furnished at the office of the secretary of the fund by the certificate of the attending physician, if there was any, and the full and particular statement of at least one competent and disinterested member of the order, stating the time, place, cause, and circumstances of the death of the party. Fifth. No officers of divisions are authorized to make, alter, or discharge contracts, or waive forfeitures, and any such act, to be valid, must be done in writing, and signed by the president and secretary of the directory. Sixth. This contract shall be void if the party shall die in or in consequence of a duel, or by the hands of justice, or in the violation of or attempt to violate any criminal law of the United States, or of any state or county in which he may be. Seventh. A failure to comply with the rules of said fund as to payment of assessments, or falling into gross and confirmed habits of intoxication, shall also render the certificate void. Eighth. This certificate is subject to all rules and regulations that the state convention may, from time to time, adopt for the general advancement and interest of the fund.

"Rules: The rules governing this contract, and which form a part of the same, are as follows: First. There shall be paid by the member under this contract to the secretary of the fund, on the day of the month in which this contract was made, the sum of one dollar, and he shall not be liable for any further sum except as follows: Second. Upon the death of any member, the said Thomas Lawler shall at once pay, if required, to its secretary an additional assessment of whatever the directory shall deem necessary. Third. The form of notice to, and process of collection from, each of the members of the assessment above named, shall be as follows: A notice shall be sent announcing such assessment, and the number thereof, to the last post-office address given to the secretary of the fund by each member; and, if the assessment is not received within forty days from the mailing of said notice, it shall he accepted, and taken as sufficient evidence that the brother has decided to terminate his connection with the fund, which connection shall thereupon terminate, and the brother's contract with the fund shall lapse, and be void. But said brother may again renew his connection with the fund by a new contract, made in the same manner as at first; or for valid reasons to the officers of the fund, such as a failure to receive notice of an assessment, he may be reinstated by paying assessment arrearages. Fourth. The above rule governing the collection of assessments for death claims shall also apply to the collection of the annual assessment. Fifth. Each applicant to become such member must sign the fund's form of application, countersigned by the board of directors of the division of which he is a member.

"In witness whereof the said A. O. H. State Insurance Fund hath, by its president and secretary, signed and delivered this certificate at its office, this 12th day of July, 1886.

"JOHN D. CUNNINGHAM,

"Secretary Ins. Fund.

"P. J. O'CONNOR,

"Treasurer Ins. Fund.

"JOHN P. MURPHY,

"President Ins. Fund."

Is it true, as claimed by the defendants, and in the sense in which they claim it, that the only agreement contained in the above contract is to pay such sum as might be received from a death assessment? Or, to put it in another form, what does the agreement to pay a sum received from a death assessment imply and involve, when taken in connection with the other provisions of the contract? The contract is a peculiar one. It is very inartificially drawn, and it is undoubtedly difficult to give it a satisfactory construction. Of course, it should be so construed as to make its contemplated benefits available, if it can legally be done; and we are at least warranted in assuming that the insurers in accepting the money of the insured, and the insured in paying it, understood that some duty devolved upon the former to secure the promised benefits of the contract to the latter. In addition to the agreement to pay to Mary Lawler, if living, if not, to the heirs of Thomas, in 60 days after due proof of his death, a sum received from a death assessment, but not to exceed $1,000, the contract further provides that the death claim shall be payable in 60 days after satisfactory proof of such death, except in certain cases not necessary to be stated here, and gives the form of notice and process for collecting the death assessment from each member of the association. Each contract contains also a promise by the insured that, upon the death of any member, he will at once pay, if required, to the secretary an additional assessment of whatever the directory shall deem necessary, additional, as the contract shows, to the dollar paid upon becoming a member. This is an agreement by the A. O. H. Insurance Fund to pay the proper person, within 60 days after satisfactory proof of the death of the insured, a sum, not to exceed $1,000, received from a death assessment. The contract contains the agreement of members to pay such assessments, and specifies the process by which its collection shall be undertaken,—"a notice shall be sent" announcing such assessment, etc. All of which, taken in connection with the other provisions of the contract, and the situation and manifest intention of the parties, seems to us to import a promise to make, or cause to be made, the necessary assessment to meet the death claim promised to be paid. It is well established that whatever is necessary to be done in order to accomplish work specifically contracted to be performed is parcel of the contract, though not specified. It is also a principle of general application that whatever may be fairly implied from the terms or language of an instrument is, in judgment of law, contained in it. Currier v. Railroad Co., 34 N. H. 498; Rogers v. Kneeland, 13 Wend. 114. Addison, in his work on Contracts, (section 1400,) says: "Although the words of a contract under seal do not in themselves import any express covenant, yet the law, in order to promote good faith, and make men act up to the spirit as well as to the letter of their engagements, will create and supply, as a necessary result and consequence of the contract, certain covenants and obligations, which bind the parties as...