Lyon v. Supreme Assembly Royal Soc. of Good Fellows

• Decision Date: 09 January 1891
• Citation: 153 Mass. 83,26 N.E. 236
• Parties: LYON v. SUPREME ASSEMBLY ROYAL SOC. OF GOOD FELLOWS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

153 Mass. 83

26 N.E. 236

LYON

v.SUPREME ASSEMBLY ROYAL SOC. OF GOOD FELLOWS.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 9, 1891.

Report from superior court, Suffolk county; CALEB BLODGETT, Judge.

Stephen H. Tyng, for plaintiff.

Wm. S. Stearns, J.H. Butler, and Wm. H. Stearns, for defendant.

HOLMES, J.

This is an action by the beneficiary named in a certificate of membership issued to her husband, Oliver P. Lyon, by a society incorporated by special charter in the state of Rhode Island. The objection is waived that, as the contract to pay the plaintiff was made with her husband, she should have brought the action as his administratrix. Otherwise it would have been fatal. Rindge v. Society, 146 Mass. 286, 15 N.E.Rep. 628; Flynn v. Association, (Mass.) 25 N.E.Rep. 716. The promise to pay the plaintiff is conditioned upon the member being in good standing at the time of his death, and the defense is that he was not in good standing at that time. The reply is that the defendant has waived that defense.

It appears that Oliver Lyon had failed to pay certain dues within the time allowed by the constitution of the subordinate assembly to which he belonged, the form of which was fixed by the corporation, and that by force of the constitution he was suspended, and not in good standing on November 1, 1888. Article 8, § 2. On that day an assessment was levied under the laws of the corporation, and he was notified, but did not pay it within 30 days, an additional ground of suspension under the laws. Law 5. On December 3, 1888, however, he paid the assessment to the proper officer, but a few days afterwards, and before the money was forwarded to the supreme treasurer, he received notice that he would have to be reexamined by the medical examiner in order to be reinstated. It is contended that the November assessment and this payment did away with all previous forfeitures. On January 1, 1889, another assessment was levied. On the 18th Oliver Lyon died. On January 17th, the day before her husband's death, a messenger of the plaintiff paid the amount of the before-mentioned dues and the January assessment to the financial secretary, the officer of the subordinate assembly to which her husband belonged, but it does not appear that the secretary knew that the payment was made by the plaintiff, and not by Oliver, or that the money ever reached the supreme treasurer, if either fact be material. The January assessment and these payments are relied on as establishing a waiver, and the payments also as establishingan estoppel in favor of the plaintiff.

The trouble with the plaintiff's case is that none of the acts relied on were acts of the corporation, but were done by officers who had no authority to waive the express provisions of its laws. In Rice v. Society, 146 Mass. 248, 15 N.E.Rep. 624, it appeared by the terms of the bill of exceptions that the assessments subsequent to the forfeiture were levied by the company, and that the amounts were received by the company. Even if the statement had been made improvidently, of which there was no suggestion, this court could not go behind it. But in this case the question of the power of the officers is open.

Under the laws of the corporation, the...