Odd Fellows Benefit Ass'n v. Smith

Smith, J., delivered the opinion of'the court. Appellant is a mutual benefit association, organized with a system of grand and subordinate lodges. In April, 1905, appellant issued to Willis Smith, a member of its local lodge No. 3056, a benefit certificate by which — 337 — it agreed, to pay at Ms death to Celia Smith, his wife, a sum of money not to exceed one thousand dollars, provided the certificate was then in force. The failure to pay the regular monthly* assessment of one dollar on or before the 15th day of the month in which it became due ipso facto worked a forfeiture of the certificate. Willis Smith died on the 20th day of June, 1910, whereupon appellee, his widow and the beneficiary in the certificate, called upon the appellant for the payment of the amount of the policy. This being refused, she instituted this suit in the court below to collect it. To her declaration appellant pleaded the general issue, and set up by way of notice thereunder that Willis Smith failed to pay his assessments for April, May and June, 1910, and that consequently he thereby became suspended and the certificate forfeited. To this notice appellee replied that she would introduce evidence to prove “that it was the practice and custom of the secretary of lodge No. 3056 not to insist upon a literal compliance with the rules of the association in reference to the time of the payment of assessments due by its members, and that it was and is the custom and practice of the said secretary of said lodge to waive the time of payment of assessments by the deceased, Willis Smith, and the .other members of said lodge, and accept double payments of assessments for two months after the expiration of one of said months, and that said practice of waiving the rule in reference to the time of the payments of the assessments was practiced and indulged by the secretary of said lodge and by said lodge at the time of the death of the said Willis Smith.- The plaintiff will further introduce evidence to prove that the deceased, Willis Smith, on the-day of May, 1910, paid to the local secretary of said lodge his dues for the months of April and May of said year, and the secretary accepted the payment of said dues for said months, and had not re — 338 — turned the same to the said Willis Smith, or his representatives, and that said Willis Smith departed this life on or about the 20th day of June, 1910, and that shortly after his death, and during the month of June of said year, Will Smith tendered to the secretary of said lodge the assessment of said Willis Smith for the said month of June, which tender was by the secretary declined and refused. The plaintiff will insist that the defendant is estopped from setting up a literal compliance with its rules in reference to the payment of assessments by the deceased and its other members as a defense to this action, and here and now tenders the defendant one dollar, the assessment due by Willis Smith for the month of June, 1910, if the defendant will accept the same.” There was evidence introduced by appellee to prove the matters set up in her reply to appellant’s notice under the general issue, but there was no evidence introduced by her tending to show that this custom of the local secretary was known to the appellant’s general officers, or that the assessments alleged to have been collected by him for the months of April and May were by him remitted to appellant’s general secretary. On behalf of appellant there was evidence in denial of all of the matters set up in appellee’s counter notice. There was a verdict and judgment in favor of appellee. Sections 8, 9, 10, and 11 of the constitution and bylaws of appellant’s order are as follows: “8. Assessments. — Every member of'the Odd Fellows’ Benefit Association shall be required to pay into the office of the secretary and treasurer of the association a regular monthly assessment of one dollar, for each and every month, on the 1st day thereof. ' “9. Forfeiture. — Any member of the Odd Fellows’ Benefit Association who fails to pay any regular monthly assessment of one dollar as provided for in section 8, or the annual tax as provided for in section 24, on or before — 339 — the 15th day of the month in which the same became due and payable, into the office of the secretary and treasurer, thereby and because of such failure ipso facto forfeits his membership in the association and becomes suspended from the association, cancels his policy, and at his death no benefit, as provided for in section 7 of the revised constitution and by-laws, can be paid. “10. Renewals. — When a member shall have become suspended from the Odd Fellows’ Benefit Association as provided for in section 9 hereof, and who is in good health, may renew his membership in the association by making application as a new member, with medical certificate, surrendering his old policy and paying the sum of one dollar. He shall receive a new policy, which shall be valid only after thirty days from the date of its issue. “11. Reinstatement. — Any member having been suspended from the Odd Fellows’ Benefit Association not exceeding one month for failure to pay one assessment as required by section 8 of the by-laws and constitution, upon -application for reinstatement, may be reinstated by the secretary and treasurer, if in good health and vouched for by the officers of the lodge, upon the payment of two dollars.” We will express no opinion as to the assured’s right growing out of the alleged payment by him to the local secretary of his assessments for April and May; for, since it is admitted that his assessment for the month of June was not paid at all, and was not tendered to appellant until after his death, which occurred after the 15th of the month, his benefit certificate became thereby forfeited, and the peremptory instruction requested by appellant should have been given, unless it is estopped from pleading the assured’s failure to pay this assessment when it became due by reason of the custom of the secretary of its local lodge to accept payment thereof at a later day. There seems to be some conflict in — 340 — the decisions of the various courts which have had this matter under consideration; hut a correct conclusion is easily reached, if we hear in mind certain elementary rules governing the relation of principal and agent. These are: First, that the acts of an agent in excess of his real or apparent authority are not binding upon his principal; second, that limitations upon the authority of an agent, known to persons dealing with him, are binding’ upon such persons, and they can acquire no rights against the principal by dealing with "the agent contrary thereto; and, third, in determining whether the limitations placed by the principal on his agent’s authority have been waived by reason of a custom of the agent to act in violation thereof, one of the essential facts to be determined is whether or not such custom on the part of the agent was known to and acquiesced in by the principal. The secretary of appellant’s local lodge was its agent for the purpose of collecting the monthly assessments; his authority so to do being derived from, and limited by, appellant’s constitution and by-laws with notice of which assured was charged, for the reason that they constituted a part of his contract.- Any act of this local agent, therefore, in excess of the limitations upon his authority contained in the constitution and by-lawrs, is not binding upon appellant, unless it can he held to have waived such limitations by reason of the custom of its agent to act in violation thereof. There is no evidence whatever tending to show that any general officer of appellant had any sort of notice of this custom on the part of its agent, and, consequently, such a custom cannot be held to have been acquiesced in by appellant. There has been, therefore, no waiver by appellant of the provisions of sections '8, 9, 10, and 11 of its constitution and by-laws, and nothing done by it by which it is estopped from setting up- assured’s failure to — 341 — pay in avoidance of Ms certificate; and, consequently, the peremptory instruction requested by appellant should have been given. We must not be understood as intimating that, had the custom pursued by the local secretary in collecting the assessments been known to and acquiesced in by appellant’s general officers, it would thereby have been estopped from pleading the assured’s failure to pay his assessment for the mQnth of June on or before the 15th day thereof in avoidance of his certificate, for this question does not arise on this record, since there was no evidence of any such knowledge and acquiescence on the part of appellant’s general officers. The judgment of the court below is reversed, and the cause remanded. Reversed and rema/nded.