Wells v. Covenant Mutual Benefit Association of Illinois

• Decision Date: 12 February 1895
• Citation: 29 S.W. 607,126 Mo. 630
• Parties: Wells v. Covenant Mutual Benefit Association of Illinois, Appellant
• Court: Missouri Supreme Court

29 S.W. 607

126 Mo. 630

Wells v. Covenant Mutual Benefit Association of Illinois, Appellant

Supreme Court of Missouri, Second Division

February 12, 1895

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.

Reversed and remanded.

""T. J. Rowe for appellant.

The second count of the petition fails to state facts sufficient to constitute a cause of action at law, or in equity. Julia Wells had no vested interest in the benefit certificate and Hasten Wells had the right at any time to either surrender the certificate or to change the beneficiary. ""Coleman v. Knights, etc., 18 Mo.App. 189; ""Conclave v. Capella, 41 F. 1; ""Masonic Ass'n v. Burkhart, 11 N.E. 449; ""Lamont v Hotel, 16 R. L. J. 696; ""Bloomington v. Blue, 11 N.E. 331. (2) The bare fact that a party is insane will not authorize the cancellation of his contract and is no defense to its enforcement. ""Alexander v. Railroad, 54 Mo.App. 66, and cases cited. (3) The petition is lacking in essential averments; plaintiff does not offer to restore the money paid Hasten Wells and to place the association ""in statu quo. Where a cause of action can not be gleaned from a petition, advantage of that fact can be taken for the first time on appeal. ""Andrews v. Lynch 27 Mo. 169; ""State v. Ross, 25 S.W. 952. (4) Opinions of expert medical witnesses as to mental capacity are entitled to but little weight as against proof of facts showing mental capacity. ""Bailey v. McGough, 151 Ill. 11; ""Blount v. Spratt, 20 S.W. 968. When parties can not be placed ""in statu quo, equity will not interfere to set aside a contract. 1 Story's Equity Jur., sec. 228. A contract executed by a person ""non compos mentis, and not under guardianship, is not absolutely void, it is voidable. ""Tolsom v. Garner, 15 Mo. 494, and the numerous decisions cited by Judge Biggs in ""Girard case, 46 Mo.App. 116.

""D. P. Dyer for respondent.

(1) The appellant will be held to the issues tried in the lower court. The supreme court of this state has uniformly held that a point not raised in the trial court will not be considered by it. ""Claflin v. Silvester, 99 Mo. 276; ""Mfg Co. v. Nelson, 100 Mo. 325; ""Nall v. Railroad, 97 Mo. 68. (2) This court has also held that the cause here must be reviewed on the theory upon which it was tried in the court below. ""Harris v. Hays, 53 Mo. 90; ""Bettes v. Magoon, 85 Mo. 580; ""Bray v. Seligman, 75 Mo. 31; ""Whitstone v. Shaw, 70 Mo. 575; ""Walker v. Owen, 79 Mo. 563. (3) The evidence supports the finding of the trial court, shows that Hasten Wells was stricken with paralysis in November, 1890, and up to his death was practically without any mind at all.

OPINION

Burgess, J.

On the twenty-second day of August, 1879, defendant was, and ever since that time has been, a benevolent society, duly incorporated under the laws of the state of Illinois, its object and business being to afford financial aid and assistance to the widows, orphans, heirs or devisees of deceased members, or to totally disabled members. On that day it issued to plaintiff's husband, Hasten Wells, since deceased, a certificate of membership in said association, which it is alleged by plaintiff, his widow, was conditioned that, upon the death of her said husband, the defendant would cause an assessment to be made on all of the members of said defendant association, for an amount sufficient to pay, as a benefit to plaintiff, the sum of $ 5,000, upon the death of her said husband. Hasten Wells died in St. Louis, Missouri, on the twenty-fifth day of November, 1892.

On January 22, 1892, for and in consideration of the sum of $ 1,050 paid to him by defendant, he surrendered his certificate of membership in said association, and in writing released it from all liability on account of said certificate. On securing the money he took it home, threw $ 1,000 of it in the lap of the plaintiff and told her upon what account he had received it, when she refused to accept it or to have anything to do with it. The remaining $ 50 he retained. The $ 1,000 lay around the house from the time it was taken there by deceased, no part of it being used, until after his death, when it was used to defray his funeral expenses, and for the use of the family.

Defendant having refused to pay plaintiff the amount claimed by her to be due on the certificate of membership, she instituted this suit. There were two counts in the petition. The first was abandoned upon the trial, and the second is as follows:

"Plaintiff, for another and further cause of action against the defendant, states that, on the twenty-second day of January, 1892, Hasten Wells was a member of the defendant association, and, as such, held a certificate of membership issued by the said defendant; that said certificate (a copy of which is herewith filed and made an exhibit to this petition and marked Exhibit A) was conditioned that upon the death of the said Hasten Wells, the said defendant would cause an assessment to be made on all of the members of said defendant association, for an amount sufficient to pay, as a benefit to the plaintiff, the sum of $ 5,000. Plaintiff states that on the said twenty-second day of January, 1892, the said Hasten Wells was a member of said defendant association, and the certificate theretofore issued to him as aforesaid was in full force and effect.

"Plaintiff states that on the said twenty-second day of January, 1892, the said Hasten Wells was sick in both body and mind, and by reason thereof was incapable of making and entering into a valid contract; that on the said twenty-second day of January, 1892, the defendant, through its servants and agents, obtained from the said Hasten Wells, his signature to a paper (indorsed on the back of said certificate), in words and figures as follows, to wit:

"'St. Louis, Mo., January 22, 1892.

"'Received of the Covenant Mutual Benefit Association of Illinois ten hundred and fifty dollars, in full of all claims, under and to the within certificate of membership number 4141, on the, my life, of Hasten Wells, and hereby surrendering all my right, title and interest, under and to the same, and releasing said association from all liability; also warranting and defending said payment against any and all claims whomsoever.'

"Plaintiff states that at the time the said Hasten Wells signed said paper, and surrendered said certificate, he was incapable of making a valid and binding contract by reason of his unsoundness of mind, and that said pretended contract obtained by the defendant as aforesaid is, and of right should be held to be, of no binding force and effect.

"Plaintiff states that the defendant hath refused, and still refuses, to cause an assessment to be made on the members of said association for the purpose of paying to plaintiff, as the beneficiary in said certificate, the sum of $ 5,000, as became its duty so to do upon the death of the said Hasten Wells, which occurred on the twenty-fifth day of November, 1892, and of which fact the defendant was duly notified.

"The premises considered, the plaintiff says she is entitled to recover of the defendant the sum of $ 5,000, for which amount, with interest and costs, she prays judgment."

Defendant in its answer admits the membership of deceased in the association, its refusal to cause an assessment to be made on the members of said association for the purpose of paying to plaintiff the sum of $ 5,000 or any other sum, and admits its incorporation, but denies all other material allegations in the petition, and avers that it is a benevolent society duly incorporated. It then alleges that by the by-laws of said association any member may withdraw therefrom by returning his or her certificate, and paying whatever may be due the association, and thereby forfeit all claims against the same. And that on the twenty-second day of January, 1892, said Hasten Wells did, for and in consideration of the sum of $ 1,050, paid to him by defendant, surrender said certificate and release defendant from any liability thereon.

To the new matter set up in the answer plaintiff made reply, denying all allegations contained therein. The trial resulted in a judgment for plaintiff in the sum of $ 4,057.62, and defendant appealed.

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