Newman v. Covenant Mut. Ben. Ass'n
| Citation | 72 Iowa 242,33 N.W. 662 |
| Parties | NEWMAN, TRUSTEE. v. COVENANT MUT. BEN. ASS'N. |
| Decision Date | 28 June 1887 |
| Court | United States State Supreme Court of Iowa |
OPINION TEXT STARTS HERE
Appeal from district court, Linn county.
This is an action at law, wherein the plaintiff, as trustee of the beneficiary named in a certain certificate of membership issued to one Hewitt in the defendant association, seeks to recover a judgment of $5,000 upon the certificate. There was a trial to a jury, and judgment and verdict were rendered for the plaintiff for the amount claimed. The defendant appeals.Blake & Hormel and McKenzie & Calkins, for appellant.
Henry Rickel and Smith & Powel, for appellee.
The defendant refused to make an assessment, the refusal being based upon the ground, as alleged, that the certificate had become forfeited by a violation of its provisions by the person to whom it had been issued. The jury found against the defendant upon the alleged forfeiture. The defendant, however, insists that in no event can it be made liable in an action at law for more than nominal damages, in the absence of an assessment, and that the plaintiff's remedy, if he has any, is by a proceeding to compel an assessment to be made in accordance with the terms of the certificate.
By its terms it is provided that the person to whom it is issued shall pay certain mortuary assessments, never to exceed one dollar, upon the death of each member, and in case of his failure to do so the certificate shall be void. It is further provided that in case of the death of Hewitt, the person upon whose life it is issued, “he having in all respects complied with the conditions of the certificate, an assessment shall be levied upon all the members holding certificates in force at the time of the death of said member for the full amount named in their respective certificates, * * * and the sum so collected on such assessments (less all amounts which may be added for expense and collections) the association hereby agrees to pay, and cause to be paid, to the devisees of said Hewitt; * * * but in no case shall the payment under this certificate exceed $5,000.” The plaintiff alleged in his petition that the assessment, if levied, would have produced the sum of $5,000, but that the defendant refused to make an assessment, and denied all liability to pay the claim.
The defendant admitted that it refused to make an assessment or pay the claim, and admitted that an assessment under the terms of the certificate would have amounted to $5,000, but denies that it would have resulted in the payment to the association of said sum, or any part thereof. The defendant, as a distinct defense, to which the court below sustained a demurrer, alleged that no assessment had ever been levied, and that no money had ever been received, on said certificate. The same questions were also raised by defendant by instructions asked and refused, and by motion for new trial and in arrest of judgment.
The theory of the plaintiff is that if the certificate has not been forfeited, and the...
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