Clune v. Catholic Order of Foresters

Vinje, J. We find it unnecessary to discuss many of the questions presented by the briefs of counsel for the respective parties or to set out in detail all the facts upon which they rely, because of the existence of certain facts that are un-contradicted and control the case. No other prior ground of suspension than the delinquency of the March, 1916, dues is urged. If that fails then the suspension was unlawful. It is undisputed that Clune went into the saloon business July 1, 1915, and from such date till January 1, 1916, when he received a permit from the order to engage in such “hazardous risk,” he paid double monthly dues of $6.52 each. Under the rules of the order he was required to pay such dues only from the time the permit was granted him. The result is he overpaid for a period of six months and would not have been in arrears had he made no payments from January 1, 1916, to the time he was suspended. On the other hand, that he made payments up to March, 1916, is conceded by defendant. This item of overpayment alone shows that his dues were fully paid for March, 1916, and that he was unlawfully suspended. True, as stated by the trial judge, the overpayments during the time he had no permit did not operate to prevent a forfeiture of the contract because he had no permit had the order insisted upon it. But it did not. It received the payments knowing the facts and must be deemed to have waived the forfeiture. It could not, however, insist upon retaining the overpayments without giving him credit for them. Such payments were made under a mistake of facts and it was the duty of defendant to account for them. . Peterson v. Stoughton State Bank, 78 Wis. 113, 47 N. W. 368. In view of this state of the case we find it unnecessary to go back prior to July 1, 1915, in the account. After he was notified of his suspension, dues were tendered until plaintiff was informed by the order .that her husband was no longer a member of it. From that time she was under no [82] duty to tender further dues. Langnecker v. Grand Lodge A. O. U. W. 111 Wis. 279, 87 N. W. 293; J. I. Case T. M. Co. v. Johnson, 140 Wis. 534, 537, 122 N. W. 1037; Baumann v. Metropolitan L. Ins. Co. 144 Wis. 206, 128 N. W. 864. By the Court. — Judgment affirmed.