Toelle v. Central Verein der Gegenseitigen Unterstuetzungs Gesellschaft Germania

Cassoday, 0. J. The defense is to the effect that Albert was duly assessed September 1, 1893, and duly notified thereof, but failed to pay the same within thirty days as required; that the same was true of the assessment made October 1, 1893, and also of the assessment made November 1, 1893; that October 24, 1893, by reason of such nonpayment and pursuant to notice, Albert was duly suspended, and notified thereof; that November 28, 1893, he was expelled, and his name was stricken from the list of members; that Albert lived until December 22, 1893, but was never reinstated, and never paid any assessment nor any dues after September 1, 1893. Such facts are, in effect, alleged in the answer, and established by the undisputed evidence. 1. The right of the plaintiff to recover, as alleged in the complaint, is conditioned upon Albert having complied with all the rules, regulations, and laws of the defendant, and upon his being in good and regular standing therein at the time of his death. It is contended that such allegations of the complaint are admitted by the answer, because it is therein “only denied upon information and belief.” But such denial is followed by this: “ The defendant further denies that the said Albert Toelle was, at the time of his death, a member of the defendant association or corporation in good standing.” In addition, and as indicated, the answer alleges facts from which it appeared affirmatively that he was not in good and regular standing at the time of his [325] death. We must hold that the answer, in that respect, was sufficient to put the standing of Albert, at the time of his death, in issue. 2. It is further contended, in effect, that the allegation of the answer that an assessment was made November 1,1893, implied that Albert had a right to pay that assessment at any time within thirty days thereafter, and hence waived his prior suspension, forfeiture, and delinquencies. In support of such contention counsel rely on Stylow v. Wis. O. F. M. L. Ins. Co. 69 Wis. 224. In that case the by-laws provided that membership should cease upon failure to pay any assessment for sixty days, subject to reinstatement upon terms therein prescribed. The member died October 29, 1885, and he was then delinquent for more than sixty days on an assessment made July 15, 1885, and another August 10, 1885; and September 15, 1885 (two days after the expiration of the sixty days on the assessment of July 15, 1885), another assessment was made against the member. The benefit certificate sued upon had been taken in 1883 in exchange for one taken in 1880. On the trial it appeared that of the forty-eight assessments made on the first certificate every one was paid and accepted by the company after the expiration of the sixty days, without question; and that of the sixteen assessments made on the last certificate fifteen were paid from eleven to one hundred and ninety-four days after the expiration of sixty days, without question; and that only one of the sixty-four assessments had ever been paid within the sixty days, and that was the assessment of June, 1885; and at the time of paying it the assessment of May, 1885, was also paid and accepted, without question, notwithstanding the sixty days had expired for nearly a month. Upon such facts it ivas held that the company could not escaiie payment by the mere failure to pay the two assessments ivithin the sixty days. Some things said in the opinion of Mr. Justice Tayloe in that case may be [326] misleading. The decision in the case is necessarily confined to the questions arising upon the facts and decided by the court. To say that every assessment after the failure to pay a prior assessment is a waiver of the forfeiture is to obviate all necessity for application for reinstatement so long as the assessments continue. Upon such a theory the only remedy the company would have would be to stop short, and insist upon forfeiture upon the first failure to pay an assessment. The case at bar comes within the principles of Schmidt v. Modern Woodmen of America, 84 Wis. 101. In that case the member was in default for nonpayment of an assessment when due, and accordingly his right to any benefits under the certificate was thereby suspended; but he was entitled to restoration on payment of arrearages within three months, if his health was not impaired; and it was held that the subsequent assessment, with the notice given, was not a waiver of the suspension of the right to benefits under the certificate. See, also, Jackson v. M. W. Mut. R. Asso. 78 Wis. 463. Under the constitution and rules of the defendant, Albert appears to have been properly suspended; and his right to be reinstated was thereby limited to thirty days from such suspension. 3. The attempt to show that in October, 1893, the plaintiff tendered to a saloon keeper by the name of Rudolph the amount then due the company is of no significance, since he was not the financial secretary of the defendant, and did not receive the money, ■ and informed the little girl who brought the money that she must pay it to the financial secretary. Albert, as a member of the company, necessarily knew that the financial secretary was the only person authorized to receive such payment. There is no claim that Rudolph had any authority from the defendant to receive-the money. The most that is claimed is that he had been in the habit of receiving money from Albert and others, and receipting for the same, and then paying it over to the [327] financial secretary. There was no abuse of discretion in refusing a new trial for newly-discovered evidence to prove such habit or custom. It does not appear that the plaintiff was in any way prejudiced by any exclusion of testimony. We find no reversible error in the record. By the Court.— The judgment of the superior court of Milwaukee county is affirmed.