Downing & Stephenson, for appellants. J. A. Largent and Jos. McDonough, for respond ent.

CALLAWAY, C. Plaintiff brought this action to have the defendant Gus Frazier declared her trustee of the east half of lot 2 in block 137 of the town site of Great Falls, together with the buildings and appurtenances thereunto belonging; praying that said defendants, Gus and Minnie Frazier, be ordered by the court to execute and deliver to the plaintiff a good and sufficient warranty deed conveying to her such property, and that the defendant Gus Frazier be required to account to the plaintiff for certain rents and profits which he had received from the property. The case was tried to a jury, which returned special findings. Thereupon the court made up its findings, adopted some found by the jury, and, rejecting others, entered its judg ment and decree declaring plaintiff entitled to a conveyance from the defendants for such property, and ordered that the defendant Gus Frazier pay to the plaintiff the sum of $460, rent collected by him, together with the costs of the action. The defendants. moved for a new trial, which was denied. From the judgment and order denying their motion for a new trial, they have appealed.

Defendants' grounds for new trial were surprise which ordinary prudence could not have guarded against; newly discovered evi dence, material to the defendants, which they could not, with reasonable diligence, have discovered and produced at the trial; insufficiency of the evidence to justify the findings and decision of the court. In support of the first two grounds recited, defendants filed a number of affidavits. These were controverted by the plaintiff. Assuming that the affidavits are properly in the record, we have examined them, and find that the newly discovered evidence offered by the defendants is either immaterial, under the issues framed by the pleadings, or has been met in every material particular by the plaintiff's affidavits. In most respects this new evidence would be merely cumulative and of an impeaching nature. As the granting or refusing of a new trial upon the ground of surprise or newly discovered evidence rests largely in the discretion of the trial court, and as the record does not disclose an abuse of discretion in this instance, the ruling of the court below will not be disturbed. Francisco v. Benepe, 6 Mont. 243, 11 Pac. 637; Leyson v. Davis, 17 Mont. 220, 42 Pac. 775, 31 L. R. A. 429; Nyhart v. Pennington, 20 Mont. 158, 50 Pac. 413; Vogt v. Baldwin, 20 Mont. 322, 51 Pac. 157; Baxter v. Hamilton, 20 Mont. 327, 51 Pac. 265; Rand v. Kipp, 27 Mont. 138, 69 Pac. 714; State v. Brooks, 23 Mont. 146, 57 Pac. 1038; Smith v. Shook, 29 Mont. 75 Pac. 513.

Touching the ground that the evidence is insufficient to justify the court's findings, it is enough to say that there was evidence to

sustain each and all of them. The court saw the witnesses upon the stand, observed their demeanor while testifying, and passed upon their credibility in rendering its findings and decree. The testimony was very conflicting. Upon the facts presented in the record, this court will not disturb the findings and decision so made.

It follows that the judgment and order should be affirmed.

CLAYBERG, C. C., and POORMAN, C.,

concur.

PER CURIAM. For the reasons stated in the foregoing opinion, the judgment and order are affirmed.

(30 Mont. 264)

HENNESSY v. KENNEDY FURNITURE

CO.

(Supreme Court of Montana. April 18, 1904.)

EVIDENCE RECEIPTS-PAROL EXPLANATION

APPEAL-FINDINGS OF FACT-REVIEW.

1. In an action on an assigned demand there was admitted in evidence on behalf of plaintiff a so-called "duplicate" written assignment, but on appeal by defendant it did not appear from the record whether the original or duplicate assignment was delivered to plaintiff by the assignor, or whether the paper admitted in eviHeld, dence was merely a copy of the original. that it was not shown that error was committed, even if the original or duplicate should have been produced instead of a copy.

2. Plaintiff claimed that she deposited with defendant money to be applied on the price of furniture, on an understanding that, if the sale should not be consummated, the money should be returned, and defendant claimed there was a sale and part payment. Held, that it was proper to admit testimony on behalf of plaintiff to explain the purpose and meaning of a receipt given by defendant to plaintiff.

3. Findings of the trial court, based on conflicting evidence, will not be disturbed on appeal.

Commissioners' Opinion. Appeal from District Court, Silver Bow County; E. W. Harney, Judge.

Action by D. J. Hennessy against the Kennedy Furniture Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

W. Y. Pemberton and H. L. Maury, for appellant. M. J. Cavanaugh, for respondent.

CALLAWAY, C. Appeal from a judgment in favor of plaintiff and from an order denying defendant's motion for a new trial. It appears from the complaint that one Mrs. Gwin on or about September 5, 1900, deposited with the defendant the sum of $500, to be applied on the purchase price of certain furniture, with the agreement that if, for any cause, the sale should not be consummated, the money should be returned to her; that the sale "fell through," whereupon she demanded the return of the money, which was

2. See Evidence, vol. 20, Cent. Dig. § 1829.

refused; that she assigned the claim to plaintiff; and that nothing of value was ever received from the defendant by either plaintiff or his assignor, Mrs. Gwin. The answer denied the making of the assignment to plaintiff, and alleged that the defendant agreed to sell and deliver to Mrs. Gwin furniture of the value of $4,215, which she agreed to receive, and that the $500 was a partial payment on the purchase price. Other allegations in the pleadings need not be stated. The case came on for trial before the court sitting without a jury. At the outset of the trial it was admitted that before the commencement of the action the defendant had notice of the assignment of the claim to plaintiff, and that a demand had been made for the payment of the $500. Mrs. Gwin testified that she had assigned her claim against the defendant to plaintiff. The court admitted in evidence, over the objection of defendant, a so-called "duplicate" written assignment, whereby Mrs. Gwin transferred the claim to plaintiff. It is not clear from the record whether the original or duplicate assignment was delivered to plaintiff by Mrs. Gwin, or whether the socalled duplicate admitted in evidence was merely a copy of the original. Hence it is not apparent that error was committed, even if it be conceded that the original or duplicate should have been produced instead of a copy.

When Mrs. Gwin deposited the money with defendant she was given a receipt for it, and the defendant now claims that she and her assignee are bound by its terms. Considerable testimony was adduced on the part of plaintiff, without objection on the part of defendant, to explain how the receipt came to be given, and what it was intended for. We are of the opinion that from the facts apparent in the record this testimony was clearly competent. As said by this court in the case of Ramsdell v. Clark, 20 Mont. 103, 49 Pac. 591: "Whether a receipt possesses any contractual feature or not must often be determined from its entire language, and also, at times, from the language in connection with the circumstances under which it was given." The lower court found, in effect, that the receipt was not evidence of a contract between the parties, but was simply intended as an acknowledgment of money deposited with defendant by Mrs. Gwin. The testimony was conflicting, and the court found for plaintiff. Its findings of fact based upon such testimony will not be disturbed. Nelson v. Great Northern Ry., 28 Mont. 297, 72 Pac. 642.

The judgment and order should be affirmed.

CLAYBERG, C. C., and POORMAN, C.,

concur.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order are affirmed.

(34 Wash. 666)

LOGSDON v. SUPREME LODGE OF FRATERNAL UNION OF AMERICA.

(Supreme Court of Washington. April 12,

1904.)

INSURANCE - BENEFICIAL ASSOCIATION-CONSTITUTION-CONSTRUCTION-ACCRUAL OF LIA

BILITY- ISSUANCE OF CERTIFICATE-DELIVERY-PAYMENTS-APPLICATION-FORFEITURE. 1. A certificate is not "issued," within the meaning of a proviso in the constitution of a beneficial society to the effect that a member shall be liable for dues, etc., for the month in which his benefit certificate is "issued or dated by the supreme secretary," until it has been delivered to and accepted by the member.

2. The relation between a member of a beneficial association and the association must be construed as a contractual one.

3. The constitution of a beneficial association provided that every member should be liable for dues, assessments, etc., for the month in which his benefit certificate was issued or dated by the supreme secretary, if the same was issued prior to the 21st of the month, and that the assessments, dues, etc., should be payable on delivery of the certificate, or, that the certificate should remain void. Another section provided that the association should not be liable for benefits until the "degree of fraternity" was conferred, and one assessment, etc., paid. A certificate was signed by the 'association's supreme officers on August 12th, but was not delivered to the member until September 2d. On the following day the degree of fraternity was conferred, and the assessment paid. Held, that as there was no liability on the part of the association until the assessment was paid, and the degree of fraternity conferred, the payment of assessments, etc., must be applied to the month of September, instead of August.

4. Where a member of a beneficial association has paid his assessment for September, he is entitled to have another payment made in September applied to his October payment, although made in advance.

5. Where a beneficial association has in its possession sufficient funds of the member to meet assessments accruing up to his death, the defense of forfeiture for nonpayment is not available to it.

6. The provisions of a contract for fraternal benefit insurance respecting forfeiture must be construed most favorably to the insured, and so as to avoid a forfeiture, where the language is doubtful.

Appeal from Superior Court, Whatcom County; Jeremiah Neterer, Judge.

Action by Hanne Jensen Logsdon against the Supreme Lodge of the Fraternal Union of America. From a judgment for plaintiff, defendant appeals. Affirmed.

Willis B. Herr and Allen & Webster, for appellant. Virgil Peringer, for respondent.

HADLEY, J. Respondent is the beneficiary named in a fraternal insurance certificate issued by the appellant corporation to one Charles C. Jensen, who is now deceased. Payment having been refused, this action was brought to enforce recovery. A demurrer to the complaint was overruled. An affirmative answer thereafter interposed was, on motion, stricken, and the appellant refused to plead further. The court then made

5. See Insurance, vol. 28, Cent. Dig. §§ 1895, 1905.

findings of facts and conclusions of law, and entered judgment in favor of respondent for $1,012, with interest and costs. This appeal is from the judgment.

No exceptions were taken to the findings of facts, and the assigned errors which are urged relate to the rulings upon the demurrer and motion to strike, and also to the conclusions of law. It is first contended that the court erred in overruling the demurrer to the complaint. The allegations of the complaint, including exhibits attached thereto, are extensive, and it is impracticable to set them forth here in detail. The complaint, however, shows that on the 3d day of September, 1901, the deceased was initiated as a member of New Whatcom Lodge, No. 143, a local and subordinate branch of the appellant corporation; that at said time there was conferred upon him what is called the "Degree of Fraternity"; that prior to the said date he had paid all admission fees, together with fees for certificate and supreme medical and local physician's examination; that on said date he paid to the secretary of said local lodge $1 to apply on his first assessment, and also 15 cents per capita tax and 25 cents local lodge dues; that on the preceding day, September 2, 1901, the benefit certificate was delivered to him, and he accepted the same in writing; that on the 9th day of September, 1902, he died, and prior to his death had paid to the appellant 12 assessments, of $1 each, 12 monthly payments of per capita tax, of 15 cents each, and 12 monthly payments of local lodge dues, of 25 cents each. It is alleged that said 12 payments, aggregating $1.40 each, were made for the 12 consecutive months beginning with September, 1901, and ending with August, 1902. The complaint further shows that the constitution of the appellant corporation provides that each member, when he takes his degree of fraternity and receives his benefit certificate, shall pay to the secretary of his lodge, in addition to one month per capita tax and local dues, one assessment according to his age when applying for membership, which in this instance was $1; that the constitution further provides that each member of the order shall pay one assessment per month according to the rate named in his certificate, which shall be paid to the secretary of the subordinate lodge of which he may be a member on or before the last day of each month, and, if not so paid, the beneficiary certificate shall become null and void. The following further provision of the constitution also appears by the complaint: "Every member shall be liable for dues as required by his lodge, one assessment and fifteen cents per capita tax for the month in which his benefit certificate was issued or dated by the supreme secretary: provided, the same is issued prior to the twenty-first day of the month, and all certificates issued after the twentieth day of the month the assessment

and per capita tax shall be credited to the following month. Said assessment, dues and per capita tax shall be payable at the time of delivery of the benefit certificate or said certificate shall remain null and void and of no effect."

The principal contention upon the demurrer, and in fact in the whole case, hinges upon the construction that shall be given to the abovequoted extract in its application to the facts of this case. It will be seen from what has been said as to the allegations of the complaint that, if the obligation to make the first payment of assessment and dues did not accrue until the month of September, 1901, then the 12 payments which were afterwards made included the month of August, 1902. If the payments should be so applied, it follows that the payment for September, 1902, was payable at any time before the end of that month, and, inasmuch as the member died on the 9th day of September, there was no default. The benefit certificate appears to have been signed by the supreme officers of the appellant corporation, at Denver, Colo., on the 12th day of August, 1901. Inasmuch as the last-mentioned date was in the month of August, and prior to the 21st of said month, appellant contends that, under the above-quoted constitutional provision, the deceased was liable for an assessment for that month. If he was so liable, and if the first payment should be applied to August, 1901, it follows that none of the 12 consecutive payments which were made applied to any month after July, 1902, and the following month of August wholly passed without any payment. It is upon this point that appellant seeks to evade liability and to defeat recovery. Emphasis is placed upon the fact that the quoted constitutional provision says that a member shall be liable for the month in which his benefit certificate is "issued or dated." It will be observed, however, that a proviso immediately follows to the effect that such liability accrues only when the certificate is "issued" prior to the 21st day of the month. A certificate cannot be said to be issued when it is merely dated and signed by appellant's officers. It is not issued until it becomes vitalized as the evidence of a binding and mutual obligation. It does not become such until it has been delivered to and accepted by the member. In that particular it is analogous to a deed which does not become a deed until it is delivered, even though that may be long after its date. The relation between the member and appellant must be construed as a contractual one. Appellant suggests that the relation is not that of mutual obligation, since the member is not bound to pay unless he chooses to do so. Appellant agrees, however, that, if the member does pay, it shall be bound. It accepts his payment as a consideration for such binding obligation, and its liability does not arise until payment has been made. When the member pays, he does it for a consideration, which is the agreement of appellant to pay benefits.

A contract must be mutual, and, until all conditions are such that appellant is bound to pay benefits, there is no contract. Appellant now insists that a payment made and accepted in the month of September, 1901, should be applied to the prior month of Au-, gust, notwithstanding the fact that, if the member had died during said month of August, appellant would not have been bound. It would not have been bound for the reason that its constitution expressly provides that it shall not be liable for a payment of benefits until the degree of fraternity is conferred upon the member, until one assessment and one monthly per capita and dues are paid, and until the benefit certificate has been delivered to him, and its terms accepted in writing on the face thereof. We have already seen that the certificate was not delivered and accepted until the 2d day of September, 1901, and the degree of fraternity was not conferred and the assessment paid until the following day. All these things occurred after the expiration of the month of August, and appellant was not during that month liable to pay benefits. When, therefore, the first monthly assessment was paid and received, it must be held to have applied to a month when the appellant itself was bound. Otherwise the member would have received no consideration for his payment, and it would have amounted to a mere gratuity. It is immaterial that another payment was made before the end of the month of September, 1901. The member was entitled to have the payment applied to the month of October, although paid in advance. The same was true of other payments also made in advance, and it is immaterial that appellant itself may have otherwise applied them. As long as sufficient funds of the member to meet the assessments were timely in the hands of appellant, no defense of forfeiture for nonpayment is available. Elliott v. Grand Lodge A. O. U. W., 42 Pac. (Kan. App.) 1009; Evarts v. U. S. Mut. Acc. Ass'n, 16 N. Y. Supp. 27; Supreme Lodge of Patriarchs of America v. Welsch, 57 Pac. (Kan. App.) 115; Knight v. Supreme Council Order of Chosen Friends, 6 N. Y. Supp. 427; Demings v. Supreme Lodge Knights of Pythias (Sup.) 48 N. Y. Supp. 649; Margesson v. Mass. Ben. Ass'n, 42 N. E. (Mass.) 1132. If, as appellant contends, the deceased was liable for an assessment for the month of August, 1901, then, under the constitution, as we have seen, it must have been paid before the end of that month, or he was in default. On that theory he was in actual default on the 2d day of September, when appellant delivered to him the benefit certificate. For reasons already stated, however, it seems to us illogical to reason that a default could occur until such a time as there was a completed contract between the parties. If there could be no default, there could be no liability. Appellant objects to the use of the term "liability," as applied to the member, for the reason that the whole matter is optional with him. Such may be technic

ally true, but the term is commonly used in this connection, and it is the identical one adopted by appellant itself in its own constitutional provision above quoted. The term is, of course, not used of the member in the sense that an absolute personal obligation to pay exists, but rather in the sense that, if he would continue appellant's liability, he himself is obligated to pay. We think the complaint clearly states a cause of action, and that the demurrer was properly overruled. We see no provisions in appellant's constitution that necessarily conflict with our views as expressed, and certainly not when they are all construed together under the application of ordinary rules governing contracts. The case does not seem to us to involve even inconsistent or contradictory questions suggesting a doubtful relation between appellant and the insured. If it were so, however, it would be our duty to construe the provisions in the contract respecting a forfeiture so as to adopt those most favorable to the insured. Forfeitures are not favored, and, where language is doubtful, courts will adopt that construction which will avert a forfeiture. National Bank v. Insurance Co., 95 U. S. 673, 24 L. Ed. 563; Franklin Life Ins. Co. v. Wallace, 93 Ind. 7; Elliott v. Grand Lodge, supra; Modern Woodmen of America v. Jameson (Kan.) 30 Pac. 460; Miner v. Michigan Mut. Ben. Ass'n, etc. (Mich.) 29 N. W. 852; Woodmen of the World v. Gilliland (Okl.) 67 Pac. 485. Some general comments in the opinion of the last above cited case we heartily approve, and, because of their seeming appropriateness, we quote them here: "We believe that the true rule of construction in cases like this is that the court will give to the language such a liberal construction as will tend rather to sustain than to defeat the certificate, consistent with the laws and rules of the order; that beneficiary certificates of insurance, having been designed for the relief of those who are needy and helpless, should not be defeated of their purpose on grounds and for reasons which are purely technical; that a forfeiture will not be enforced unless it is clearly demanded by the rules governing the construction of written agreements. When a policy of insurance contains inconsistent or contradictory provisions, it is the rule that the provisions most favorable to the insured will be adopted.

Courts will construe a contract of insurance liberally, so as to give it effect, rather than to avoid it. Conditions which create forfeitures will be construed most strongly against the insurer. Only a stern legal necessity will induce such a construction as will nullify the policy."

The above discussion upon the demurrer to the complaint effectually disposes of the case. We believe the court did not err in striking the affirmative answer, as we think no competent issue was tendered thereby. The findings were in substance in accord with the allegations of the complaint as above stated. There were no exceptions to the findings.

The court's conclusions of law were in accord with our views expressed above, and we believe they were not erroneous.

The judgment is affirmed.

FULLERTON, C. J., and MOUNT and DUNBAR, JJ., concur.

(35 Wash. 14)

HESSER v. SIEPMANN et al. (Supreme Court of Washington. April 18, 1904.)

ADVERSE POSSESSION -SEVEN YEARS' LIMITATIONS TEN YEARS' LIMITATIONS-COLOR OF TITLE NECESSITY — WHAT CONSTITUTESPLEADING-SUFFICIENCY.

1. Ballinger's Ann. Codes & St. § 5504, providing that every person having color of title to vacant and unoccupied land, who shall pay taxes for seven successive years, shall be deemed to be the owner of said land to the extent and according to the purport of his paper title, and section 5503, in regard to the possession of lands, which is in practically the same language, have no application to a possession or payment of taxes, unsupported by any actual paper title. 2. An allegation that plaintiff "is now, and she and her grantors have been, in the actual, open, notorious, and adverse possession under color of title and claim of right for more than ten years last past," is a sufficient allegation of adverse possession.

3. Adverse possession, either under color of title or claim of right, or both, is sufficient without the aid of a record title.

4. Where, at the time deeds to a city lot were given to plaintiff and her husband, it was understood that a strip excepted by the deed from the lot was a portion of the lot which was occupied by a street, and that the lot which was purchased reached to the line of the street or avenue, and there was no intention to purchase a lot with such a strip intervening between the boundary of the lot purchased and the street, the deed to the lot as actually conveyed was sufficient to constitute color of title to the strip.

Appeal from Superior Court, King County; Boyd J. Tallman, Judge.

Action by Sarah Hesser against Henry Siepmann and others. From a judgment for defendants, plaintiff appeals. Reversed.

Fred H. Peterson, for appellant. Greene & Griffiths, for respondents.

DUNBAR, J. Appellant brought this action against respondents to quiet her title to the whole of lot 30 in block 72, Gilman Park, situated in Ballard, King county, Wash., and particularly the west 20 feet thereof; also to enjoin respondents from entering upon said lot 30, and particularly the west 20 feet thereof. The appellant alleged that she and her grantors had been in the actual, open, notorious, and adverse possession, under color of title and claim of right, for more than 10 years last past, to wit, since March 6, 1891, and continuously thereafter until the present time. The deeds through which she deraigned title are set forth, one conveying an undivided one-third of said lot 30, excepting 20 feet, the full

1. See Adverse Possession, vol. 1, Cent. Dig. § 512.

width of the lot on the west, and the other an undivided two-thirds of said lot 30, except 20 feet, the full width of the lot on the west. It is alleged that the appellant and her grantors, at the time of taking possession thereof on March 6, 1891, made inquiry as to the lines and corners of said lot, and were informed and verily believed that the land described in the said two deeds included all the tract of land now claimed by the respondents; that at the time of purchasing said lot said appellant and her grantors went into the actual, open, and notorious possession of the lands described in their deeds, including all of the west 20 feet of said lot, believing at the said time that the west 20 feet of said lot was situated west of the east marginal line of what is now known as "Fourth Avenue West," in the city of Ballard; and that, by reason of the aforesaid acts and actual belief of ownership under and by virtue of said deeds, appellant and her grantors continued to hold possession of said land, and held said entire lot as now actually occupied, and particularly said west 20 feet. She also alleged that, for more than seven years last past, appellant had actually paid all the taxes, municipal, county, and state, which were levied against the whole of said lot 30, including the west 20 feet thereof, and that said taxes were paid under claim of right and color of title. The lot in dispute is an irregular lot, and the west 20 feet of the lot reaches the east boundary of Fourth avenue west. The answer was practically a denial of the allegations of the complaint. At the conclusion of the trial,. the court found that the respondents were the true owners in fee simple of the westerly 20 feet of said lot; that the appellant was not the owner in fee simple, nor in the possession of the property in controversy, to wit, the westerly 20 feet of said lot 30, but that the appellant and her predecessors in interest had paid and caused to be paid a certain amount of taxes assessed against said lot, including the westerly 20 feet thereof; and decreed a dismissal of the action upon the payment to the appellant by the respondents of said amount of taxes.

Appellant contends that judgment should have been rendered in her favor, for two reasons, (1) by reason of actual, open, notorious, and adverse possession for a period of more than 10 years prior to the commencement of the action, and (2) by reason of the payment of all taxes legally assessed thereon for more than seven successive years under color of title, to wit, by paying all of said taxes from the year 1891 to the year 1902, inclusive. It does not seem to us that 'the appellant's second contention can be sustained. There is no claim here that there was any actual paper title to the west 20 feet of lot 30, and section 5504, Ballinger's Ann. Codes & St., upon which appellant relies, is to the effect that "every person having color of title made in good faith to va