Tobin v. Western Mut. Aid Soc.

• Decision Date: 29 June 1887
• Citation: 33 N.W. 663,72 Iowa 261
• Parties: TOBIN v. WESTERN MUT. AID SOC.
• Court: Iowa Supreme Court

72 Iowa 261

33 N.W. 663

TOBIN

v.WESTERN MUT. AID SOC.

Supreme Court of Iowa.

June 29, 1887.

Appeal from circuit court, Lucas county.

This is an action upon a certificate of membership issued by defendant to one Cecilia Tobin, wife of the plaintiff, who is the beneficiary. The defense is based on the failure of said member to pay certain assessments in the year 1884. The plaintiff, by reply, denied such failure, and alleged that in March, 1885, the defendant demanded and received from said member the annual payment falling due April 1, 1885, and still retains the same, and thereby waived the alleged prior breaches. Trial was had to a jury, and verdict and judgment were rendered in favor of plaintiff, and defendant appeals.Dungan & Leach and W. E. Miller, for appellant.

T. M. Stuart, for appellee.

ADAMS, C. J.

1. The appellant contends that the effect of the reply wherein the plaintiff pleaded a waiver or estoppel was to admit the alleged failure to pay assessments, and that the court erred in submitting such question of failure to the jury, and in support of this doctrine relies upon Meadows v. Hawkeye Ins. Co., 62 Iowa, 387, 17 N. W. Rep. 600. But the pleading of a waiver or estoppel is not necessarily inconsistent with a denial of the facts pleaded in the answer as a defense, and we see no reason why plaintiff could not both deny the alleged failure to pay assessments, and also plead subsequent acts of the company which would prevent it from availing itself of such failure, if any there was. Especially would this be true where, as in this case, the alleged breaches of the contract might have occurred without any actual notice to the person in default. This exact point is practicably passed upon in Eikenberry v. Edwards, 32 N. W. Rep. 183.

2. The appellant claims that the court below erred in instructing the jury that the burden was upon defendant to establish the alleged failure of plaintiff to pay assessments. While plaintiff pleaded, in general terms, a compliance with the contract, the defendant in its answer set up as a defense the failure of said Cecilia Tobin to pay certain specified assessments. We think this was an affirmative defense, and that the burden was upon defendant to establish the same. It depends upon the defendant's own acts, and upon facts which might be solely within its own knowledge. To sustain the defense it was only necessary to show that the company had made an assessment upon the member in question, and mailed to her notice thereof, and that the same had not been paid; no actual notice being required. We do not think the plaintiff was required to show afterwards that “no such default had occurred.” In the case of Hodsdon v. Guardian Life Ins. Co., 97 Mass. 147, in respect to a similar contract, the court say: “The burden of proving a breach of this executory stipulation, and an avoidance of the policy, by non-payment of one of the premium notes, was upon the defendant.”

3. Certain instructions of which appellant complains were given by the court below as to the defendant's alleged waiver of the failure to pay assessments by its subsequent demand, receipt, and retention of annual dues. Under the uncontradicted testimony, however, we think the instructions were fully as favorable to defendant as the evidence justified. While there was evidence tending to show that notices of assessments were mailed in 1884 to Mrs. Tobin, which remained unpaid,...