Spande v. Western Life Indem. Co.
| Decision Date | 19 March 1912 |
| Citation | 61 Or. 220,122 P. 38 |
| Parties | SPANDE v. WESTERN LIFE INDEMNITY CO. |
| Court | Oregon Supreme Court |
On rehearing. Former opinion adhered to.
For former opinion, see 117 P. 973.
John H. Smith (John H. & A.M. Smith and Edward & A.R. Mendenhall, on the brief), for appellant.
G.C. Fulton (C.W. & G.C. Fulton, on the brief), for respondent.
This case was originally submitted on briefs without oral argument, and a decision was rendered reversing the judgment of the circuit court and remanding the cause for further proceedings. 117 P. 973. On motion of the plaintiff a rehearing was granted, and counsel have been heard orally.
In pursuance of some oral stipulations made in the circuit court between counsel, but of which no memorandum appears in the record before us, counsel for defendant at the argument on rehearing waived the question of whether the plaintiff is entitled to recover in his own name on an instrument providing for payment of money to his wife and not to him in any event. The principal contention presented by plaintiff on rehearing was that the circular letter dated Chicago February 22, 1908, addressed generally "To the Comrades of the Order of Washington," with the peroration --quoted in our former opinion, is itself sufficient proof of the allegations of the complaint to take the case to the jury as against defendant's motion for a nonsuit.
Such a motion being in effect a demurrer to the evidence of the plaintiff, it is the duty of the court to consider all the testimony and to construe the writings, and all of them introduced by plaintiff in support of his case. Adverting to the allegations of the complaint which are quoted in the former opinion, we find that, according to plaintiff's contention, the defendant bound itself absolutely at all events to the performance of all the things to be done by the Order of Washington. The circular letter in that respect merely proposes on receipt of a certain payment to issue a formal agreement or guaranty binding the company to fulfill the obligations of the order "until such time as a policy for an equivalent amount can be issued on our forms and at our premium rates in accordance with the provisions of the reinsurance contract entered into between the Order of Washington and this company." This conditional offer is not proof of the absolute liability alleged in the complaint. The sum and substance of this circular letter is that the membership of the Order of Washington is informed that measures have been inaugurated looking to a novation, whereby the order is to be released from its obligation to its members, who are to accept the company, instead of the order, and the company is to assume the obligations in question in consideration of specified payments to it by the individual members of the order. It invites the comrades of the order to participate in the proposed novation, all the time referring to the reinsurance contract between the company and the order as the standard by which the liability of the company is to be ultimately measured. The circular is nothing more than negotiation on the...
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National Sur. Co. v. People ex rel. Kane
...Ins. Co. v. Ocean Insurance Co., 107 U.S. 485, 1 S.Ct. 582, 27 L.Ed. 337; Spande v. Western Life Indemnity Co., 61 Or. 220, 117 P. 973, 122 P. 38. seem to claim that defendant's liability in this case was determined in the People v. National Surety Co., supra. The question here discussed wa......