Porter v. American Legion of Honor

• Decision Date: 21 May 1903
• Parties: PORTER v. AMERICAN LEGION OF HONOR.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

183 Mass. 326

67 N.E. 238

PORTER v. AMERICAN LEGION OF HONOR.

Supreme Judicial Court of Massachusetts, Suffolk.

May 21, 1903

COUNSEL

Whipple, Sears &amp Ogden and Alexander Lincoln, for plaintiff.

Elder & Whitman, for defendant.

OPINION

LATHROP J.

We are of opinion that the justice of this court who heard the case was right in ruling that the plaintiff could not recover on any count of his declaration. The plaintiff is a certificate holder in the defendant association. The certificate is dated September 10, 1895, and by its terms the defendant agrees to pay the plaintiff's wife $5,000 upon satisfactory proof of the plaintiff's death while in good standing upon the books of the supreme council, and subject to certain conditions, one of which is 'that said companion shall have paid all assessments called within the time and in the manner required by the by-laws of the supreme council in force at the time of the issuance of this certificate or as the same may be hereafter amended.' The plaintiff alleges in the first count that he is entitled to recover the value of his policy, on the ground that in August, 1900, the defendant amended one of its by-laws so as to reduce the amount of the benefit to be paid on this certificate, upon death, from $5,000 to $2,000. And this is the alleged breach of the contract. In the second and third counts he further contends that on account of this breach he is entitled to recover the assessments he had already paid.

The by-law of 1900 was before the court in Newhall v American Legion of Honor, 181 Mass. 111, 62 N.E. 1; and the court there held that the defendant could not, by the by-law, cut down the express promise to pay $5,000. The action in that case was brought by the beneficiary of a certificate holder, who died in October 1900. Tender was made by the beneficiary of the full amount due as an assessment under the previous by-law, but the defendant refused to accept more than was due under the new by-law. The plaintiff in the present case, upon the passage of the by-law of August, 1900, duly protested, and tendered to the defendant the amount of the assessment which he had been paying upon the basis of a $5,000 benefit. The defendant refused to accept the tender, but did accept $9.60, which was the amount of the assessment at the new rate, and the plaintiff continued to pay at the new rate down to the trial but each time protesting, and not waiving his rights to have $5,000 at his death, and keeping alive the tender. The plaintiff at the time of the trial was a member in good standing. We are of opinion that the contract has not yet been broken. It is a contract to pay at his death $5,000 to his beneficiary. If the defendant does not choose to assess him on a $5,000 basis, he has no groung of complaint. He stands ready to be assessed, and can do no more. That recovery can be had for the full amount in case of his death, notwithstanding the change in the by-law, was held in Newhall v. American Legion of Honor, ubi supra. The same rule was applied by the Circuit Court of Appeals for the Third Circuit in American Legion of Honor v. Getz, 50 C. C. A. 153, 112 F. 119. We regard it as settled in this commonwealth that where a contract is to be performed at a certain time, or on the happening of a certain event, a...