Expressman's Mutual Benefit Ass'n v. Hurlock

Fowler, J., delivered the opinion of the Court. On the ninth day of September, 1899, the plaintiff, as administrator de bonis non c. t. a. of Eliza E. Ehrman, brought suit in the Superior Court of Baltimore City on two certificates or policies of insurance for $1,000 each, issued to Charles H. Ehrman, by the Expressman’s Mutual Benefit Association, a corporation formed under the laws of New York, and doing business in this State, being represented here by an agent who resides in the city of Baltimore. The *590 defendant corporation was formed for the sole benefit of its members and their beneficiaries and not for profit — its object being the collection of contributions or assessments, and the distribution thereof to such beneficiaries as shall be entitled thereto under its by-laws and charter and the policies issued thereunder. Charles H. Ehrman, the holder of the two policies or certificates on which this suit was brought against the association, died in January, 1899, and was, at the time of his death, a member in good standing. It appears that his wife, Eliza E. Ehrman, was duly designated as the beneficiary, that is to say, the person to receive the insurance money at his death, and her name was therefore so endorsed upon said policies, and so entered upon the books of the company. She died, however, about a year before his death, and in the interval between her death and his, he made no designation or appointment of a new beneficiary, and no other name was either endorsed on the policy or entered upon the books of the defendant as beneficiary in the place of hers. Upon his death the requisite proof thereof was duly furnished, and the defendant thereupon assessed its members to the amount of the two certificates, two thousand dollars, and that sum was collected and was in its hands at the time this suit was brought. • The contention of the plaintiff, the administrator d. b. n. c. t. a. of Mrs. Ehrman, is that the insurance money due and payable by the defendant on the two policies sued on are part of her estate, while this position is denied by the defendant, on the grounds, first, that upon a true construction of the certificates the insurance money is payable to the executrix of the insured, Charles H. Ehrman ; secondly, that a Court of the State of New York of competent jurisdiction in a cause in which the plaintiff and all other parties claiming said fund, were parties, has so decided, and that by and under the decree of that Court passed in said cause the defendant paid to said executrix of Charles H. Ehrman the money claimed by the plaintiff in this suit, and third, that the contract of insurance made between the defendant and Charles *591 H. Ehrman and his beneficiary being a New York contract, it must be construed, not by the law of Maryland, but by the law of New York. During the progress of the trial five exceptions were taken by the defendant. The first bill of exceptions relates to the ruling sustaining the demurrer to defendant’s fourth plea, which sets up payment and pleads the decree of the New York Court as justification thereof, and as a final adjudication of the matter involved in this suit. We have several times called attention to the fact that rulings on demurrers, upon motions to set aside or in arrest of judgment, should not be brought to this Court by bill of exceptions. Such rulings should appear on the face of the record, and a bill of exceptions in such cases is not only not necessary but irregular. Davis v. Carroll, 71 Md. 569; Poe's Practice, sec. 312. The same question, however, is properly presented by another part of the record by which it appears by an appropriate entiy on the docket that the demurrer in question was sustained. The subject of the second bill of exceptions is the ruling of the Court by which the deposition of one of the defendant’s witnesses taken under a commission issued to New York was not certified under the seal of the officer by whom it was taken. The refusal to admit in evidence a certified copy of the proceedings in the New York Court, which are set out in the fourth plea, forms the ground of the third exception. The fourth was taken to the ruling by which a certified copy of the bill filed by defendant under oath and offered by plaintiff was admitted as evidence against the defendant. Although we have thus stated all the rulings of the Court it will not be necessary to consider them seriatim, for if the contract here sued on is a Maryland contract and the New York Court never had jurisdiction of the plaintiff, the law of this State, as declared by this Court in Thomas v. Cochran et al., 89 Md. 390, must control, and it would follow that although some errors may have been committed below, yet as it is evident that this plaintiff is the only one who *592 can rightfully claim, the judgment would have to be affirmed. We will briefly consider, first, whether the contract sued on is a Maryland contract, and second, the jurisdiction vel non of the New York Court. i. It seems to us too clear for controversy that the contract must be regarded not only as a contract made here, but one also to be performed here. The certificate of membership or policy held by Charles H. Ehrman certifies that from a certain date he was. admitted as a member of the association, but it is evident that he did not become a member until he had paid the premium and had accepted the policy. It is true that one of the witnesses testified that the signing of the certificate by the proper officers in New York constitutes the applicant a member of the association, but while that may have been his opinion, we do not think it follows as a conclusion of law from the facts in the record. On the contrary, we see no reason why the general rule. applicable to contracts of this character should not apply, namely, that the contract is not a completed contract until it is tendered by one party and accepted by the other. In the case of Stevens v. The Rasin Fertilizer Company, 87 Md. 683, the question was presented as to whether certain policies issued by a Mutual Fire Ins. Co. of Massachusetts were Massachusetts or Maryland contracts. And it was held that they were not consummated and completed until they were delivered here to the insured, and that, therefore, they were to be treated as Maryland contracts. It will be remembered that the policies here involved were delivered by the defendant’s agent to the insured in Baltimore City. We think it equally clear that these contracts were to be performed in this State. It appears from the rules and regulations of the defendant as well as by the testimony of its representatives in this State that the assessments and .dues were paid by members to him for the company, and that claims of beneficiaries were paid by him for the company to the claimants. We conclude, therefore, that these con *593 tracts were not only made in this State, but that they are to be performed here. But even if it be conceded that the first proposition cannot be maintained, the second must be admitted, upon the facts which we have stated. The general law applicable to contracts entered into in one State to be performed in another, is thus briefly but comprehensively stated by the Supreme Court in Scudder v. Bank, 91 U. S. 412; “ Matters connected with its performance are regulated by the law of the place of performance ; matters respecting the remedy depend upon the law of the place where the suit is brought.” It would follow, therefore, that even if, as contended by the defendant, these certificates were completed contracts when signed in New York, yet the lights of the parties thereunder must be determined by our law. And this is the theory upon which the prayers of the' defendant itself were framed, for all of them, except one, require the finding of the fact that the policies were delivered to or accepted by the insured here. But, without regard to authority, it would be a most remarkable situation if all the contracts made by our citizens with foreign corporations, under the same circumstances these were made, are to be construed, and the rights of parties thereunder to be settled, by the laws of other States. We cannot adopt a view leading to such results. Of course we do not mean to say that contracts could not have been made in New York to be performed there. 2. The remaining question to be considered is whether the decree passed by the New York Court is binding upon the plaintiff. The answer to this question in a great measure depends upon another, and that is whether the suit in which the decree was passed was a proceeding in rem or in personam, for if the latter it is clear the plaintiff is not bound, for the reason that he was not summoned except by publication. We shall not undertake, nor is it at all necessary for the purposes of this case, to attempt to give any general definition of a judgment in rem. That, says Mr. Freeman, in his work on Judgments, is a difficult task, sec. *594 606. But there are many cases in which we can at once say no such judgment or decree can be passed. Such, we think, was the nature of the suit instituted in New York, the decree in which is relied on by the defendant as a defense to the claim of the plaintiff. There were several claimants for the money due on the policies — but this fact certainly would not change the character of the suit from one in personam to one in rent. In the section just cited, 2 Freeman on Judgments, sec. 606, it is said: “There may, however, be cases in which property is in the State, and even in the custody of the Court, and in which the judgment disposing of it is neither in rent nor binding on a non-resident party to the action who did not appear therein. Thus it has been held, where an insurance corporation was sued in the State wherein it was located, and paid the money into Court and obtained an order requiring a non-resident claimant to appear and interplead with the plaintiff, and served such order on the non-resident personally in the State of his residence, that such order could not compel the non-resident claimant to appear, and that the judgment finally entered disposing of the moneys in Court was not in rent, and constitued no defense to an action brought by the claimant against the corporation in . the State wherein he resided.” The case of Cross v. Armstrong, 44 Ohio St. 614, is cited by the author. In that case it was held that in a suit brought against the company by the widow of the insured upon a policy in which she is named as beneficiary, in a Court in the State where such company is located, and in which suit, by direction of the Court, the company brings into Court a sum of money sufficient to satisfy the amount due on the policy, and obtains an order requiring the administrator, resident in Ohio, to appear and interplead with such widow as to their respective claims under the policy, service in Ohio of a copy of such order and of citation upon the administrator, do not give the Court jurisdiction of his person and (there being no appearance nor other service on such administrator) a judgment in the action *595 purporting to debar him from any claim or right as against, the widow is, as to him, void. The opinion of the Court in the case just cited contains a full and careful statement of the law relating to judgments in rem, and is worthy ot careful consideration. “The proceeding,” says the Court, “ was clearly one of interpleader and that only. We do not understand that an action in personam, simply because a debtor brings money, the right to recover which is in contention, and gives to the custody of the Court a sum sufficient to discharge his debt, changes into an action in rem, or that an interpleader suit is, in its nature, a proceeding in rem.” But even if the plaintiff here had voluntarily appeared in the New York Court the other claimant could have effectually disposed of him and his claim by denying his power as administrator to maintain a suit for the collection of assets in a New York Court. Bank v. Sharp, 53 Md. 529; Story on Conflict of Laws, sec. 513. We refrain from commenting upon the fact that the New York suit was commenced after our decision in Thomas v. Cochran was announced, when all doubt as to who was the lawful claimant had been removed, and that it was prosecuted to decree in spite of the fact that both the defendant company and the person to whom the money was paid, the latter being a resident of this State, had, after appearing and answering, been enjoined and prohibited by a decree of Circuit Court No. 2 from proceeding further with the inter-pleader bill in the New York Court. It results from what we have said that the demurrer to fourth plea was properly sustained, that the New York Court never had jurisdiction of the plaintiff, that the contracts sued on are Maryland contracts, and that the rights of parties thereunder must be determined by our law, and finally the law announced in Thomas v. Cochran, supra— namely, that the plaintiff, the administrator of Mrs. Ehrman, the wife of the insured, whose name was endorsed on the policy and entered on the books of the company as beneficiary, is entitled to recover, and that under no circumstances *596 could the executrix of the husband to whom the defendant paid the money, maintain a suit to recover it in Maryland. (Decided June 16th, 1900.) The questions raised by the other exceptions need not be considered, as what we have said disposes of the case. Judgment affirmed.