Mutual Endowment Assessment Ass'n v. Essender

Stone, J., delivered the opinion of the Court. The whole contract between the appellant Association and Robertson, the insured, is contained in the certificate of membership issued to Robertson, and the rights of the parties in this case must depend upon that certificate alone. The circular shown hy Mr. Mitchell, acting as the agent of the Association, to Mr. Robertson in his life-time, and before he became a member, formed no part of his contract, and was in fact, merely an advertisement setting forth the advantages of the Association. The first Article of the certificate of membership is as follows: 1st. “ It is agreed, that the said Nathaniel C. Robertson, shall pay the sum of twenty-five dollars, as a membership fee; and further, the sum of $2.50 quarterly, for expenses, to be paid said Association, and also such sums as may be required by the conditions hereto annexed, for mortuary assessments.” If this Article was the only part of the certificate that related to the quarterly dues, it would have been the duty of the insured to have paid these expenses without any call or notice. But by the sixth clause in the certificate, a different- face is put upon the matter. That clause is in these words: 6th. “ The holder of this certificate further agrees, and accepts said certificate upon the express condition, that if the said assessment or quarterly dues shall not be paid at the office of said Association, within thirty days after date of notice, the certificate shall be null and void and of no effect.” By this latter clause the Association assumed the burden of giving the insured a notice, and the insured did not for [467] feit his membership, if he paid his dues at any time within thirty days from the date of such notice. Taken and construed together, as the first and sixth clauses of the certificate must he, they mean this, that while the insured, Robertson, after having paid his membership fee of twenty-five dollars, agreed to pay the Association two dollars and a half quarterly, the Association agreed not to forfeit his membership, unless he made default in the payment of his quarterly dues and assessments for more than thirty days after they gave him notice. There is no question raised as to the assessment for death, hut only as to the quarterly dues. Robertson may have neglected or omitted to pay his quarterly dues, hut that fact alone would not, without the notice from the company, deprive him of his membership. The notice was a condition precedent to the forfeiture, and it becomes important to enquire what such notice should contain. We think it quite clear that the notice contemplated by the sixth clause, must mean a notice given after the quarterly dues were payable. It does not mean a notice given in advance and before the quarterly dues were payable; for if that were so, Robertson could have been notified on the very day of the issue of the certificate, (23rd Dec., 1879,) that he must pay his quarterly dues for the whole of the next year, or even longer. This was certainly not contemplated by either party to the contract, and is not borne out by the language of the clause. If Robertson, then was entitled to his notice after his dues were payable, the first notice that the company could properly give him, was after his first quarterly payment fell due. Then the notice given him must be reasonably in accord with the contract, and must call upon him, or notify him with reasonable certainty what he must do within the next thirty days. Row the notice actually sent to Robertson according to the defendant’s testimony was the following: [468] “Baltimore, Md., April 15th, 1880. “ You are hereby notified, that your annual dues for the year ending April 15th, 1881, are to he paid at this office. Amount $10.00. Send this notice hack with your remittance, when it will he receipted and returned to you.” By that notice Robertson was called on to do what he had not contracted to do. He had contracted to pay $2.50’ at the end of each quarter, and was called on to pay ten dollars as an annual fee, and in advance. Nor did the Association do what they had contracted to do. Their contract was, as we have before said, to notify the insured after his payments were due, hut they in fact notified him of claims that were to fall due in the future, and demanded payment in advance against the terms of the agreement. Now forfeitures are not favored in the law, and the Courts are always ready to seize hold of any circumstances, that can reasonably avoid so harsh a measure as a forfeiture. In this case the Association relies upon this notice as sufficient ground for the forfeiture of the interest of Robertson in the company. But in all such cases where a forfeiture is sought to he enforced through a notice, as a condition precedent, the party seeking to enforce it must, show that he "has complied at least with reasonable certainty, with all the conditions precedent, and the other party is entitled to such a notice as his contract calls for. In the case of Johnson vs. Lyttle’s Iron Agency, 5 Chan. Div. 687, the Court (James, Melish, and Baggally,) unanimously held, that a notice to a shareholder in which he was charged more interest than he ought to have been, was on that account bad, and not sufficient to cause a forfeiture of his shares, and lay down the rule that the condition precedent must he strictly complied with. While we are not inclined to adopt a rule so strict, as the one laid down in that case, still there is a wide, and in our opinion, fatal variance in this case between the notice actually given, and the one required by the terms of the contract, both in [469] the amount required to he paid, and the time of the payment. Such a notice is wholly insufficient to work so grave a consequence, as the forfeiture of a valuable interest to the insured, and the judgment must he affirmed. (Decided 1st March, 1883.) Judgment affirmed.