Logan Tribe I. O. R. M. v. Schwartz

Bowie, C. J., delivered the opinion of this Court: The appellee, widow of Simon Schwartz, instituted suit against the appellant, to recover certain benefit dues which she claimed to be owing to her, as widow of the deceased, [571] under tbo Charter and By-Laws of the Society of which her husband was a member. (Decided May 5th, 1863.) The defendant, the appellant, (after the evidence had been closed,) prayed the Court to instruct the jury, that if they believe from the evidence, Simon Schwartz, the appellee’s husband, was, on the 1st of April 1856, in arrear for weekly dues to the Society for more than three months, and was also in arrear for other weekly dues for more than three months, at the time of his death, then the plaintiff is not entitled to recover, which instruction the Court refused, and the judgment being for plaintiff, the defendant appealed. In the opinion of a majority of this Court, the defendant’s prayer was based upon a correct construction of the Charter and By-Laws of the Association under which the plaintiff claimed. The payment of the dues referred to, being a condition precedent to the plaintiff’s right to recover, whether the dues were in arrear or not, was a fact proper to be submitted to the jury, with the instruction prayed. The Court having refused the same, the judgment below should he reversed, and procedendo awarded. Judgment reversed, and procedendo awarded.