Appeal
from Mahaska District Court.--HON. D. RYAN, Judge.
ACTION
in mandamus to compel the defendant to restore the
plaintiff's name to its roll of members. A demurrer to
the petition was sustained, and, the plaintiff refusing to
further amend his pleading, judgment was rendered for the
defendant. The plaintiff appeals. Reversed.
REVERSED.
OPINION
BECK, C. J.
I. The
petition was filed April 12, 1889, and alleges that the
plaintiff is a member of the defendant association, under a
policy sufficiently described; that he paid all dues and
assessments on the policy, and has fully complied with the
conditions thereof; that the defendant made an assessment on
the plaintiff's policy to pay a death loss, and notified
the plaintiff thereof, the last day of payment being March
30, 1889; that on the twenty-third and again on the
twenty-ninth day of March, within the time prescribed for
paying the assessment, during the business hours of each day
he went with the money to the defendant's office to pay
the assessment, but was unable to do so, for the reason that
he found no one in the office. On the following third day of
April he again went to the defendant's office and offered
to pay the assessment, and tendered the amount thereof to the
defendant's secretary, who was authorized to receive it
but it was refused; and thereupon the plaintiff was dropped
from the roll of membership, and his policy declared
forfeited by the defendant. It is alleged that these acts of
the defendant are fraudulently done, in order to defeat the
plaintiff in another action against the defendant, and that
the defendant has refused to reinstate the plaintiff, though
requested so to do.
On the
fourth day of October, 1889, the plaintiff filed an amended
petition alleging that he was and is in good health, and the
defendant did not refuse to accept payment of the assessment
for the reason that the plaintiff was in bad health or over
age, but for the fraudulent reason before stated. The
amendment contains the following further allegation
"That plaintiff is now ready and willing to pay said
assessment, and all subsequent assessments that
may have been made since defendant wrongfully declared said
forfeiture, or that may be made pending the trial of this
cause; that plaintiff, on the fourth day of October, 1889
paid to the clerk of said court, F. E. Smith, one dollar, and
the same is now in the hands of said clerk; that said dollar
was paid to said clerk for the said association, and for said
assessment; that no other assessments have been made upon
plaintiff, excepting this, which have not been paid.
Plaintiff further alleges that, prior to the date at which
defendants claimed the forfeiture, defendant had repeatedly
received assessments from this plaintiff, and from other
parties, more than thirty days after notice had been given,
as required under the by-laws, that such assessments had been
made; that defendant's secretary, Cyrus Beede, told
plaintiff that it was all right if assessments were not paid
within the thirty days, and that they could be paid
afterwards, without examination, and as if paid within the
said time; that said secretary, prior to the date of said
alleged forfeiture, has repeatedly taken assessments from
plaintiff after the thirty days' notice had expired; that
it was the custom of the defendant to take the assessments
after more than thirty days had expired from the date of the
notice; that twice before said alleged forfeiture plaintiff
had suffered more than thirty days to elapse before paying
the assessment on his own policy, and also upon policy No.
835, upon the life of Mary E. Loughridge, plaintiff's
sister, and also on policy No. 437, upon the life of Austin
Gray, and policy No. 436, upon the life of Sarah E. Gray,
plaintiff's father-in-law and mother-in-law; that
plaintiff was the agent for said parties, and paid their
assessments for them, and relying upon the statement of said
Beede that assessments could be paid after the thirty days,
and upon the custom of the defendant to so receive the said
assessments, plaintiff had permitted said
policies to lapse, and that said defendant had
received the assessments after more than thirty days at the
hands of the plaintiff, and as if paid within the thirty
days, without examination, and without any steps being taken,
except the payment of the money; that plaintiff relied upon
the statement and the custom of defendant, as to the payment
of assessments after more than thirty days, and believed that
defendant would accept his assessment, as it had repeatedly
done before, after more than thirty days; that the defendant
waived the provisions in the by-laws and policies in
reference to prompt payment, and by its course of dealing
with plaintiff led him to believe that payment could be made
after more than thirty days...
