MacDowell v. Ackley

Mr. Justice Mercur delivered the opinion of the court, May 3d 1880._ This was a case stated. It was agreed that certain facts “be stated for the opinion of the court in the nature of a special verdict with power to the court to draw the same inferences of fact as a jury might draw.” Afterwards the matter was referred to a referee under the Act of 14th May 1874. He decided in favor of the defendant, and entered judgment accordingly. It may be that the referee was rather liberal in his inferences of fact under the submission; but no exceptions were filed, nor is any error assigned by reason thereof. The complaint is to the entry of judgment in favor of the-defendant. Looking then at all the facts agreed on and found, t'he important ones are these. The plaintiff sought to recover under a right claimed to have existed in her father James J. MacDowell at the time of his death. In 3865, he became a member of the stock exchange. An amendment to the constitution was adopted ’ in 1875, for the benefit of all full members of the stock exchange who, in addition to all other payments, which under the by-laws he was required to make, should at the time of his admission pay to the trustees a sum specified, and the like sum annually on the first day uf each December, and on the death of any full member a certain other specified sum. The fund thus to be created was styled the “ Gratuity Fund.” It was provided that -within thirty days after the death of any full member, the nominee, widow, child or children, or legal representatives of those who were full members at the time of their death should be paid a gratuity of two thousand dollars. It was also declared that a full member for this purpose should be construed to mean a member owning a seat in the stock exchange whether suspended or otherwise. A further amendment to the constitution was adopted in Hovenber 1877. It [283] declares “ that any suspended member who shall have failed for three months to pay in full, all gratuity dues and assessments, shall forthwith cease to be a full member for the purposes of” interest in the gratuity fund, but might be restored to such full membership by a favorable report of the. standing committee “ on payment of all arrears of gratuity dues and assessments.” MacDowell failed to pay his regular quarterly dues for the several quarters ending 31st March; 30th June; 30th September; and 31st December in 1877, and 31st March and 30th June 1878 ; also the annual sum payable to the gratuity-fund 1st December 1877, and also the several assessments due from him to the gratuity fund by reason of the death of members on the 7th August, and 9th of September 1877, and in August 1878. On the 6th of August 1878, he was suspended for the non-payment of his regular quarterly dues. In November following he died intestate, leaving the plaintiff his only child and heir, and did not designate to whom said gratuity should bo paid. If he had a fixed interest in the fund the plaintiff is entitled to it. The question then is whether his failure to pay his dues and assessments, and his consequent suspension, worked a forfeiture of his contingent rights ? The fact is unquestioned that he was not at the time of his death a full member, and the plaintiff was not entitled to any share of the proceeds of his seat under the constitution of 1877. The plaintiff contends that it is inoperative against her father, inasmuch as it is not shown that he was present or voted at the time of its adoption, or that he in any manner assented thereto; and by reason of insanity he was duly confined in the insane hospital from the 28th of April 1878 until his death. We answer: 1. The right of MacDowell in this gratuity fund was grafted on his existing membership in the stock exchange. The same power that created it could, in the manner prescribed, modify its enjoyment. It is conceded That all the forms required by the constitution and by-laws to amend the constitution were duly observed in the adoption of the amendment in November 1877. He was not then under any mental disability. If not then present he could have been had he so desired. He in no manner dissented therefrom. Having then voluntarily refrained from participating in the amendment, and not dissenting therefrom, we do not see how he could afterwards have denied its full effect. Nor could his dissent have relieved him therefrom. Having subscribed to the constitution and by-laws, and the change having been made in accordance therewith, he could not be permitted to question its validity. He could not enjoy the benefits of the fund without performing his part towards creating it. It was a fund kept separate from all other sources of revenue, and could be supported only by the payment of the several sums and assessments especially appropriated [284] thereto. The case stated admits that from the time his dues began to be in arrear in 1877, he continued indebted until his death, and “ during this time his attention was frequently called to the fact of his indebtedness by the secretary and treasurer of the exchange.” He was liable to suspension for failing to pay his regular quarterly dues. For this he was suspended, after repeated notice of his delinquency. Thereafter, in the words of the constitution, he “ failed for three months to pay in full all gratuity dues and assessments,” and “forthwith ceased to be a full member for purposes” of this fund, and was so found by the referee. 2. He was in default in the payment of five separate quarterly dues; of two assessments to the gratuity fund; and of one annual dues to the same fund before he was committed to the hospital. Subsequent mental incapacity did not relieve him from the effect of previous neglect and refusal to discharge his legal and just duty. With his loss of full membership, under laws existing when he became a member, his right to the gratuity fund fell with it during his life, and there was nothing to transmit to the plaintiff. Judgment affirmed.