Reisz v. Supreme Council Am. Legion of Honor

• Decision Date: 02 June 1899
• Citation: 103 Wis. 427,79 N.W. 430
• Parties: REISZ ET AL. v. SUPREME COUNCIL AMERICAN LEGION OF HONOR.
• Court: Wisconsin Supreme Court

103 Wis. 427

79 N.W. 430

REISZ ET AL.

v.SUPREME COUNCIL AMERICAN LEGION OF HONOR.

Supreme Court of Wisconsin.

June 2, 1899.

Appeal from superior court, Milwaukee county; George E. Sutherland, Judge.

Action by August Reisz and others by Lorenz Maschauer, guardian ad litem, against the Supreme Council American Legion of Honor, on a benefit certificate. Judgment for plaintiffs, and defendant appeals. Affirmed.

Plaintiffs are beneficiaries named in benefit certificate No. 156,052, issued by the defendant to their father, Christian Reisz, June 10, 1891, being, however, a continuation of said Christian's membership, which commenced in 1882. This certificate required payment of assessments according to the by-laws, and they provided for payment of regular assessments on the 1st and 15th of each month, and such special assessments as might be called; and further provided that upon failure to pay any assessment on or before the day it was due the member should stand suspended, with privilege, however, of reinstatement by payment, at any time within 60 days, of the delinquent assessment, together with all other assessments which had been called before the date of suspension. Christian Reisz failed to make payment of an assessment of $2.64, which was due July 1, 1893. He died July 10, 1893, and the same day his daughter paid this assessment to the defendant's collector, who received and receipted for it without knowledge of the death, but immediately on receiving such information returned it to the daughter, who refused to receive it. The jury found that the defendant, by its course of dealing, had led the deceased to believe that payment of assessments within a few days after the time fixed therefor would be accepted with the same effect as though such assessments were paid on time, and would leave the deceased with the same rights and benefits, and that defendant had waived a strict compliance with the requirement of prompt payment of assessments; also that the deceased was led by such course of dealing to defer the payment due July 1, 1893, until his death, on July 10th. Judgment was rendered for the plaintiffs for the amount of the certificate and interest, from which defendant appeals.A. B. May, for appellant.

John F. Burke and G. D. Price, for respondents.

DODGE, J. (after stating the facts).

1. The primary and vital question in this case is whether the fact that at the time of his decease Reisz had defaulted payment of an assessment due 10 days before, according to the strict words of his contract, had unavoidably forfeited his rights. It is urged that no such forfeiture occurred because the defendant had by a long course of dealing led the deceased to believe and understand that the provision of the contract regarding failure of payment on the exact day specified would not be insisted on, as suspending him from his membership. The findings of the jury on this subject have support in the evidence. It appears by the entries in decedent's receipt book that through the years 1892 and 1893 his payments were received frequently as late as two weeks after the specified pay day, and the secretary testifies that he was not suspended during those years. The collector testifies to receiving single assessments after due, although others had also been called, without question of decedent's good standing, and that he was ready to receive the one assessment on July 10th, although two others, due, respectively, July 15th and July 20th, had been called before July 1st, and made no suggestion of insufficiency thereof until informed of Reisz's death. In the interval between July 1st and July 10th no entry of suspension had been made on the lodge records, but immediately on learning of the death an attempt was made to enter a record as of an earlier date, thus indicating the officers, understanding that their conduct up to that time had not been consistent with a theory of suspension meanwhile. It is, of course, true that under the by-laws decedent had a right at any time within 60 days after a default, if suspended, to reinstate himself by paying the defaulted assessment and such others as, though not due, had been called before default, and a mere payment and acceptance of money in accordance with that right would convey no necessary implication otherwise; but acceptance of overdue assessments without insisting, or even suggesting, that other acts were necessary for reinstatement, at least suggests an understanding that the transaction constituted a satisfaction of the original promise to pay, and that default did not exist. Such payment would otherwise be utterly futile, and it is unreasonable to suppose a member would make it. Defendant would be guilty of bad faith in receiving it if it intended to insist on its futility. In the light of the above-mentioned evidence from defendant's officers, and the testimony of plaintiffs that throughout a long period such payments had been made and received from a few days to a month late, with no suggestion that anything more was necessary to set decedent right, and protect his interests, the question of the intent and understanding of the parties was open to the jury, and they were justified in holding that such payments were made and received on the understanding that decedent thereby kept his standing, and not that it was necessary to regain it. From that he might reasonably infer that he was in the future to be accorded a reasonable credit upon his assessments before there should be deemed to be a default causing his suspension, and that the strict letter of his contract had been modified or waived to that extent.

The fundamental general rule of the law, of course, is that the contract actually existing between the parties, the performance of the respective obligations to which they have agreed, shall be enforced; but a contract once made may be modified, and provisions favorable to a party thereto may be relaxed or eliminated. Bannister v. Patty's Ex'rs, 35 Wis. 215, 225;Insurance Co. v. Norton, 96 U. S. 234. Whether the minds of the parties have met on such modification or relaxation then becomes the question for decision, and that question may be resolved as well from acts and conduct as from express words. When the exact performance of a condition is not of importance to the obligee, and results in serious injury or in forfeiture to the obligor, courts lean to such construction of words or acts as relax its stringency as being more likely to accomplish the true purpose and understanding of the parties, as well as to promote justice. Erdmann v. Insurance Co., 44 Wis. 376, 382. In line with such general policy, the rule has become well established by authority that where, by failure of some exact performance, a forfeiture is imposed on one party by the strict terms of an agreement, conduct of the other sufficient to induce a belief that such strict performance is not insisted on, but that a...