Hill v. Lexington Council No. 21 Jr. O. U. A. M.

Bbogden, J. Did the act of the financial secretary in accepting the payment of dues from a delinquent member, with notice that the member was in the hospital and seriously sick at the time, constitute a waiver of the by-laws and constitution of defendant council? The constitution defines the duty of the financial secretary as follows: “It shall be the duty of the financial secretary to keep just and true accounts between the council and its members, receive all moneys due the council for dues, credit the'amounts paid, and pay the same over *699 to the treasurer immediately, if present, taking bis receipt for tbe same. He shall at the first meeting of the term make for the council a full report of all moneys received during the previous term; also a list of members in arrears and keep his books and papers at all times ready for inspection by the trustees. He shall perform such other duties as council or his office may require of him, and shall give such bond as may be provided in the by-laws.” Article 8 of the by-laws provides in substance that when a member is thirteen weeks or over in arrears that notice shall issue to such member by the financial secretary that unless a sufficient amount of the arrearage is paid so as to reduce the arrearage to less than thirteen weeks that such member will be suspended. No such notice was given to the deceased and no action was taken by the lodge. Hence the deceased was a member of the lodge at the time of his death; although, of course, to be a member in good standing, it was necessary that his dues should not be more than thirteen weeks in arrears. Therefore, the sole question is whether the acceptance of the premium by the financial secretary and the receipt in full given by him with full knowledge that the deceased was then in the hospital and seriously ill constitutes a waiver of the by-laws. This Court has spoken upon the subject in Glifion v. Ins. Co., 168 N. C., 499, 84 S. E., 817. Brown, I., writing, said: “The insurer may waive such conditions, and the unqualified, unconditional receipt of a past-due premium is a waiver.” It was held in the Foscue case, 196 N. C., 139, 144 S. E., 689, that a soliciting or collecting agent of an insurance company had no authority to waive the payment of premiums or to extend the time of payment, but the case at bar involves the authority of an executive officer of defendant. The powers committed by the lodge to the financial secretary are broad and comprehensive, constituting -him the sole agent for the defendant for collecting premiums and giving-receipts therefor. Consequently the instruction of the trial judge to the jury cannot be held for error. The defendant relies upon Page v. Junior Order, 153 N. C., 404, 69 S. E., 414. It is to be noted, however, in that case that the lodge had duly established a rule to the effect “that the standing of a member in default shall not be restored by the payment of back dues during his sickness or disability.” This rule so declared was an express limitation upon the power of the financial officer of the lodge to receive past due premiums. No such restriction appears in the by-laws of the present defendant. Hence the salutary principles announced in the Page case and the Wilkie case, 151 N. C., 527, 66 S. E., 579, do not apply. Perry v. Ins. Co., 132 N. C., 283, 43 S. E., 837; Foscue v. Ins. Co., supra. Affirmed.