Mutual Fire Ins. Co. of Cecil County v. Miller Lodge, I.O.O.F.

• Decision Date: 11 July 1882
• Citation: 58 Md. 463
• Parties: THE MUTUAL FIRE INSURANCE COMPANY OF CECIL COUNTY v. MILLER LODGE, INDEPENDENT ORDER OF ODD FELLOWS.
• Court: Maryland Court of Appeals

58 Md. 463

THE MUTUAL FIRE INSURANCE COMPANY OF CECIL COUNTY v. MILLER LODGE, INDEPENDENT ORDER OF ODD FELLOWS.

Court of Appeals of Maryland

July 11, 1882

APPEAL from the Circuit Court for Harford County.

The case is stated in the opinion of the Court.

Exception.--At the trial the plaintiff offered the four following prayers:

1. That by the true construction of the charter of the defendant, the plaintiff was in no default, because of the non-payment at the annual meeting of August 3rd, 1878, of interest on the deposit note given by the plaintiff to the defendant, unless the jury shall find that prior to the said meeting, the board of managers of the defendant had determined that the interest of the company required that interest on the deposit notes held by it, should be paid for the year beginning August 3rd 1878, and had also determined the rate of said interest, and that the defendant had given notice to the plaintiff, that payment of interest on said deposit notes was required for said year, beginning August 3rd, 1878, and of the rate of said interest, and that there is no sufficient evidence that such notice was given to the plaintiff.

2. That if the jury find from the evidence, that it had been the uniform custom of defendant to send annually to plaintiff prior to the time when the interest on its deposit note should become due, a notice stating the rate of interest that would be exacted on said note, and that the board of managers of defendant, at their meeting in May, 1878, directed the secretary of defendant to send notices of the amount required to be paid, as such interest, at the annual meeting of 1878, then the plaintiff had a right to await such notice, and was not in default by reason of the non-payment of the said interest on or before August 3rd, 1878.

3. If the jury shall find from the evidence, that on the 3rd day of August, 1878, and at the time of the fire, there was standing to the credit of the plaintiff, on the books of the defendant, not less than $10.50, as the balance left of the payments made by the plaintiff, as interest on its deposit note prior thereto, after deducting from said payments the share of said Lodge (plaintiff) in all losses and expenses heretofore accrued, and that said sum of $10.50 was due to the plaintiff for clear profits up to said time, and shall further find, that the amount required by the board of managers of defendant, to be paid as interest on the deposit note of the plaintiff, for the year ending August 3rd, 1878, was $7.50, then the said sum of $10.50 was properly applicable to the discharge of said $7.50, and the policy of insurance of plaintiff was not suspended by the non-payment of said $7.50, otherwise, by the plaintiff.

4. That if the jury shall find that at the time of the fire, which destroyed the property of the plaintiff, as mentioned in the evidence, George E. Haddaway was the local agent of the defendant for Talbot County, and was present at said fire, and wrote to the secretary of defendant, the letters of October 3rd and 4th, 1878, given as evidence by the plaintiff, and that said letters were in due course received by the said secretary, and that thereafter on the 11th December, 1878, the witness, Fountain, in company with another, as a committee, by the direction of the plaintiff, and as its representatives, went to the office of the defendant at Elkton, to make a demand of payment of the insurance money due under the policy offered in evidence, and then, and there, made of the president and secretary and treasurer, demand of said payment, and left with them the formal proof of loss given in evidence by the plaintiff, and that in answer to the said demand, the president, or secretary and treasurer, in the presence of the others, said that they were very sorry that the plaintiff had, by failure to pay the interest on its deposit note, allowed the policy to lapse, but further directed said committee to go home and prepare a full statement of all the facts in reference to their case, and send it to the office of the defendant, and that said statement, after it was received, should be laid before the board of managers at its next meeting; and that no mention or objection was made by said president, or secretary and treasurer, that notice had not been given of the claim of the plaintiff, within thirty days; and that accordingly, said committee went to Easton and reported the result of said interview to said Lodge, which thereupon appointed a committee of three persons to prepare the statement suggested; and that said committee prepared and sent to the defendant the written communication, dated December 20th, 1878, offered in evidence, and received the written reply thereto, dated January 2nd, 1879, offered in evidence; and that subsequently, at the meeting of the said board of managers in February, 1879, the said communication of December 20th, 1878, and the reply thereto, of January 2nd, 1879, and the claim of the plaintiff, as presented on the 11th of December, 1878, was laid before the said board by Mr. Ellis, the secretary and treasurer, and the board thereupon, upon full consideration of the matters submitted to it, took the proceedings recorded in the book of proceedings, offered in evidence, under date of February 18th, 1879, then the jury may find from the foregoing, in connection with all the other evidence in the case, a waiver by the defendant, of the notice mentioned in the 8th section of the charter of the defendant.

The defendant offered the following prayers:

1. That if the jury find that the defendant (company) was incorporated under the charter offered in evidence, with the by-laws offered in evidence, and that the plaintiff was a member of said company, and accepted the policy of insurance offered in evidence, and gave the defendant the promissory note therein mentioned; and further find, that for the purpose of raising a contingent fund for the payment of losses and other necessary expenses, said company exacted of its members interest on their promissory notes at the rate of five per cent. per annum, which in the judgment of the managers of said company was required to be paid on or before the day of the annual meeting of said company in August, 1878, in advance, for the then current year, of which the plaintiff had notice, and that plaintiff neglected and failed to pay said interest on or before said day of the annual meeting of said company in August, 1878, that then the plaintiff is not entitled to recover for any loss it may have suffered after said day and while said interest remained unpaid.

2. That there is evidence before the jury upon which they may find, that plaintiff, before the day of the annual meeting of the insurance company in August, 1878, knew or had notice, that interest on the premium note mentioned in the policy of insurance was due and payable on or before said day; and if the jury do so find, plaintiff is not entitled to recover for any loss that occurred after said day, and while said interest remained unpaid.

3. If the jury find that F. A. Ellis, the secretary of the insurance company, on or about the--day of July, in the year 1878, enclosed in an envelope a notice like the one offered in evidence, directed to plaintiff, and sent the same by mail to William H. Councell, who was a member of said Miller Lodge, and resided in the same town, within a few steps of the hall of said Lodge, and that said Councell received the said notice in due course of mail, that these facts, if found by the jury, constitute a sufficient service of said notice.

4. That if the jury find that the fire occurred on the first of October, 1878, and that plaintiff gave no notice thereof, and made no claim therefor until the 11th day of December, in the same year, that these are facts, together with the other evidence in the case, from which the jury may find that plaintiff had notice, that the interest on its premium note was required to be paid on the day of the annual meeting of the members of defendant (company) in August, 1878, or that plaintiff waived such notice.

5. That there is no evidence of the payment by plaintiff of any interest in or for the year 1878, on the premium note mentioned in the policy of insurance, as the consideration on which it was issued.

6. That if the jury find from the evidence, that the fire and loss thereby occasioned, occurred on the 1st day of October, 1878, and that plaintiff gave no notice thereof to defendant, and made no claim therefor until the 11th day of December, in the same year, that plaintiff is not entitled to recover in this action, unless the jury find that defendant waived the notice of loss required by its charter.

7. That there is no legal evidence in the case from which the jury can find that the defendant waived the notice of loss required by the eighth section of the defendant's charter, and that upon the issue joined upon the defendant's ninth plea, the jury must find for the defendant.

The Court (WATTERS, J.,) granted the first and fourth prayers of the plaintiff, and rejected its second and third; and granted the sixth prayer of the defendant, and refused to grant its other prayers. The defendant excepted.

The jury rendered a verdict for the plaintiff, and judgment was entered accordingly. The defendant appealed.

The cause was argued before BARTOL, C.J., ALVEY, IRVING and RITCHIE, J.

Wm. J. Jones, and Henry W. Archer, for the appellant.

Bernard Carter, and Henry D. Farnandis, for the appellee.

ALVEY,...