and the deputy assessor testifies also that it was explained to him; that he only offered to give bond for the amount of the estimated taxes, and did not offer to give the bond provided for by the statute; that he was informed that no bond could be accepted for the estimated taxes, as that was by agreement, and not under the statute; that a payment under the statute would have to be at the rate of 10 cents per head. We think the evidence was amply sufficient to justify a finding by the court below that the payment was made as a matter of choice by the defendant, instead of standing upon the terms of the law.

This was a voluntary and not a compulsory payment. The rule in such cases is stated by Chief Justice Shaw in Preston v. City of Boston, 12 Pick. 13. After stating that a party who has paid voluntarily under a claim of right shall not afterwards recover back the money, although he protested at the time against his liability, the opinion proceeds: "But it is otherwise when a party is compelied, by duress of his person or goods, to pay money for which he is not liable; it is not voluntary, but compulsory, and he may rescue himself from such duress by payment of the money, and afterwards, on proof of the fact, recover it back. What shall constitute such duress is often made a question. Threat of a distress for rent is not such duress, because the party may replevy the goods distrained, and try the question of liability at law. Threat of legal process is not such duress, for the party may plead and make proof, and show that he is not liable. But the warrant to a collector, under our statute, for the assessment and collection of taxes, is in the nature of an execution running against the person and property of the party, upon which he has no day in court; no opportunity to plead and offer proof and have a judicial decision of the question of his liability. Where, therefore, a party not liable to taxation is called upon peremptorily to pay upon such warrant, and he can save himself and his property in no other way than by paying the illegal demand, he may give notice that he so pays by duress, and not voluntarily, and, by showing that he is not liable, recover it back as money had and received." This statement of the rule is approved by the supreme court of the United States. Union Pac. R. Co. v. Dodge Co., 98 U. S. 545, 25 L. Ed. 196. And the fact that the party at the time of making the payment files a written protest does not make the payment involuntary. Id Lamborn v. Commissioners, 97 U. S. 181, 24 L. Ed. 926; Wabaunsee Co. v. Walker, 8 Kan. 431; Dill. Mun. Corp. (4th Ed.) § 947. Applying this rule, we think it is clear that the payment was in no sense compulsory. The taxes were not due, and the officer had in his hands no warrant for their collection. By pursuing either of the methods pointed out by the statute, the plaintiff

could have secured his property against the threatened seizure, and have had ample opportunity to litigate the question of his liability. He could not avail himself of the agreed basis of settlement, and at the same time place himself in the attitude of contesting his liability. It was a voluntary payment, and he cannot recover.

We do not overlook the fact that we have a statute requiring the board of county commissioners to direct the treasurer to refund any erroneous or illegal tax, and that such statutes are usually held to be mandatory although the payment was voluntary. Rev. St. 1899, § 1863; Rev. St. 1887, § 3821. The plaintiff in error does not claim any right of recovery by virtue of that section, and, moreover, he has not brought himself within its terms. The provision is that the board shall direct the treasurer to refund, and this language implies the necessity of an application to the board, for the purpose, before it can be deemed to be in default. Bibbins v. Clark, 90 Iowa, 239, 57 N. W. 884, 59 N. W. 290, 29 L. R. A. 278. And, further, it is not sufficient, under the statute, that some irregular or unauthorized method was resorted to in the assessment, but it must appear that the tax itself was erroneous or illegal; that is, that it was not justly or equitably due from him. Board of Com'rs of Johnson Co. v. Searight Cattle Co., 3 Wyo. 787, 31 Pac. 268; Board v. Armstrong, 91 Ind. 536.

Upon the whole case, we are of the opinion that it appears that the plaintiff in error has simply paid his taxes, and that he has paid no more than if the irregularities complained of had not occurred. It does not appear that he has been damaged, or that the county has received from him any moneys to which it is not equitably entitled.

The judgment will be affirmed.

POTTER, C. J., and KNIGHT, J., con

cur.

(40 Or. 511) HICINBOTHEM ▼. INTERSTATE SAV. INGS & LOAN ASS'N. (Supreme Court of Oregon. Aug. 18, 1902.) BUILDING AND LOAN ASSOCIATIONS-USURYWHAT LAW GOVERNS.

1. Where a building association of one state has a resident agent in another state, and there makes a loan secured by a mortgage on property therein, and, though the principal and interest are in terms payable at the home office, the association, for the convenience of its members, sends for collection to its local agents the monthly installment receipts, the contract, if usurious by the laws of the latter state, is invalid, though valid in the former state.

Appeal from circuit court, Multnomah county; A. L. Frazer, Judge.

Action by William Hicinbothem against the Interstate Savings & Loan Association. From a judgment for plaintiff, defendant appeals. Affirmed.

This is a suit to compel the cancellation of a mortgage on the ground that the amount

Loans to other persons, it is averred that it had a resident agent here, with authority "to take applications for loans, and forward them to the home office," and, although it was stipulated that all payments on stock, premiums, and interest were due and payable at the home office, it did, "for the convenience of its members," send, "for collection, to the local bank or treasurer, the monthly installment receipts." In short, it was doing, or offering to do, a general loan and savings business, in the state, of like character with that of the plaintiff in the Hill Case. Bedford v. Association, 181 U. S. 227, 21 Sup. Ct. 597, 45 L. Ed. 834, was a suit in the United States court to foreclose a mortgage on land in Tennessee in favor of a foreign building and loan association, and the supreme court of the United States very naturally followed the decisions of the Tennessee courts, holding that such a contract was solvable by the laws of the state where the company was domiciled and the contract made payable.

We are of the opinion, therefore, that the decree of the court below must be affirmed, and it is so ordered.

(42 Or. 63)

STRINGHAM v. DILLON et al. (Supreme Court of Oregon. Aug. 18, 1902.) BENEFICIARY INSURANCE-CHANGE OF BENEFICIARIES-BY-LAWS-PAYMENT OF FEE.

1. A member of a fraternal beneficiary society held a certificate payable at his death to his mother. The by-laws of the society provided that a member could change his beneficiary at any time in a prescribed manner, and on payment of a fee of 50 cents, but that no such change should "be effective until the old certificate shall have been delivered to the head clerk, and a new certificate issued during the lifetime of the member, and until such time the old certificate shall remain in full force." After the member married he took the prescribed steps to substitute his wife as beneficiary, except the payment of the fee, and left his certificate with the clerk of the local camp to be forwarded, and asked if the following week would do for such payment, and was told it would. He never made such payment, but after his death the local clerk forwarded the certificate to the head clerk, advancing the fee himself without any request so to do. Held, that the proposed change of beneficiary was not completed during the lifetime of the member, and the mother was entitled to the money due under the certificate.

Appeal from circuit court, Multnomah county; A. F. Sears, Jr., Judge.

Action by Maud M. Stringham against Laura Dillon and another. From a judgment for defendant Dillon, plaintiff appeals. Affirmed.

This is a suit to determine the right of adverse claimants to a sum of money due on account of a certificate of mutual life insurance. The facts are that the Modern Woodmen of America is a corporation organized under the laws of the state of Illinois

1. See Insurance, vol. 28, Cent. Dig. § 1951.

for the purpose, among others, of creating a fund from which is drawn a stipulated sum upon the death of a qualified member, payable to his beneficiary; that said corporation has a head camp at Rock Island, Ill., and local camps at other places in the states and territories, including one at Portland, Or., known as "Oregon Fir Camp No. 5,085." Le Roy Stringham, on January 31, 1899, having applied for admission to said local camp, there was issued to him by said corporation benefit certificate No. 495,341, for the sum of $2,000, payable, in the event of his death while a member in good standing, to his mother, the defendant Laura Dillon. This certificate contained, among other clauses, the following: "Provided, however, that all the conditions contained in this certificate and the by-laws of this society as the same now exist or may be hereafter modified or enacted shall be fully complied with." The by-laws of said society adopted in June, 1897, and in force at the time Stringham became a member thereof, so far as material herein, contained the following: "Sec. 43. Change in Beneficiaries. If a member in good standing at any time desires a change in the name of his beneficiary or beneficiaries, he shall pay to the camp clerk a fee of fifty cents, and deliver to him his benefit certificate, with the surrender clause on the back thereof duly filled out and executed by him, designating therein the change desired in the name of the beneficiary or beneficiaries. The execution of such surrender clause by the neighbor shall be in the presence of, and attested by, his camp clerk. The local clerk shall forward said certificate with said surrender clause indorsed thereon, and one-half of said fee of fifty cents, to the head clerk, who shall thereupon issue a new benefit certificate payable to the beneficiary or beneficiaries named in the surrender clause. No change

*

*

in the designation of the beneficiaries shall be of binding force unless made in compliance with this section." In June, 1899, said section was re-enacted by the society as section 41 of its by-laws, with the following amendment as a modification thereof, to wit: "No change in the beneficiaries shall be effective until the delivery of the new certificate, and until such time the old certificate shall be held in force." This section was further amended and modified July 15, 1901, as follows: "No change in the designation of beneficiary or beneficiaries shall be effective until the old certificate shall have been delivered to the head clerk and a new certificate issued during the lifetime of the member, and until such time the old certificate shall remain in full force." Stringham and plaintiff were married May 19, 1901, and three days thereafter, at a regular meeting of Oregon Fir Camp, No. 5,085, at his request, the clerk thereof wrote her name in the surrender clause on the back of his certificate and he subscribed his name thereto. The clerk attested his signature, and informed him that a

fee of 50 certs was prescribed for securing a change of a beneficiary, to which he replied, "I am not prepared to pay that to-night; will next Wednesday do?" The clerk answered, "Yes, that will do all right;" and the benefit certificate was left with him, but Stringham never paid the fee, and, having died July 28. 1901, the clerk on the following day voluntarily advanced 50 cents, which he sent with said certificate to the head clerk. The complaint, having set out in part the facts as hereinbefore stated, alleged that Stringham complied with all the rules and regulations of the order necessary to effect a change in his beneficiary; that at the time of his death he was a member in good standing in said corporation; that plaintiff within the time prescribed made due proof of his death, but that the defendant the Modern Woodmen of America declined to pay her the sum so stipulated; and that the defendant Laura Dillon claims some interest therein, but such claim is inferior to hers; and prays that said corporation be required to pay the sum of $2,000 to plaintiff, and that Mrs. Dillon be decreed to have no right to any part thereof. The corporation, admitting that it owed the sum demanded, but that it was unable to determine which party was entitled thereto, filed a bill of interpleader, and, having paid said sum into court, was discharged from all liability on account of said claims. The defendant Laura Dillon, answering, admitted that the Modern Woodmen of America was duly incorporated, and that her son Le Roy Stringham died a member thereof in good standing, and, having denied the other material allegations of the complaint, averred as a separate defense that he did not pay the sum of 50 cents necessary to secure a change in his beneficiary; that, according to the bylaws of said order, no such change could be made until his old certificate had been delivered to the head clerk and a new one issued to him; and that, none of these requirements having been complied with, she was his beneficiary, and entitled to the money so deposited. The reply, having denied the allegations of new matter in the answer, averred that the payment of 50 cents required to secure a change in the beneficiary was waived, notwithstanding which said sum was paid as alleged in the complaint. For a further reply it is alleged that the change in said by-laws in June, 1899, after said certificate was issued, is indefinite and unreasonable; that the change made therein in July, 1901, after Stringham had surrendered his certificate to, and it had been accepted by, the clerk of his camp, is unreasonable, and contrary to the purposes, objects, and intents of said order; and that such changes are void as to said certificate. A trial, being had, resulted in a decree awarding the sum so deposited to the defendant Laura Dillon, and plaintiff appeals.

George A. Brodie, for appellant. Oglesby Young, for respondent.

MOORE, C. J. (after stating the facts). It is contended by plaintiff's counsel that the failure of Stringham to pay the fee prescribed to secure a change of his beneficiary does not defeat the right of his widow to recover the sum specified in his benefit certificate, and that the amendments made by the order to its by-laws after he became a member thereof are unreasonable and contrary to its purposes. It is argued that the payment of the fee is not a condition precedent to the right to change a beneficiary, and that the acceptance of the money therefor by the order after Stringham's death, with knowledge thereof, waived any informality in the manner of securing such change, and that, notwithstanding the right to modify the by-laws was reserved by the order, the adoption of the amendments and modifications thereof after Stringham became a member placed it beyond his power to comply literally with the regulations, and that for these reasons the court erred in not decreeing to plaintiff the money due under the policy.

It will be remembered that the prescribed fee was not paid nor was Stringham's old certificate delivered to the head clerk or a new one issued in the lifetime of the deceased, as required by the amended by-laws. To justify a reversal of the decree, it would be necessary, therefore, to uphold both points for which plaintiff's counsel contend. If it should be determined, however, that the payment of the fee was a condition precedent to the right to change a beneficiary, it would be unnecessary to consider whether the amendment of the by-laws after Stringham became a member of the order was prejudicial to the rights of either party.

As a matter preliminary to the principal inquiry, it is deemed proper to consider whether the acceptance of the sum of 25 cents by the order after Stringham's death waived, so far as plaintiff is concerned, any defect in the manner of changing the beneficiary. The testimony fails to show that the corporation had any notice of his death when it received the money; but, conceding that it possessed such information, the acceptance of a part of the fee, under the circumstances assumed, could not in any manner change the rights or prejudice the interests of Stringham's widow or of his mother, which, as between them, became vested at his death. It is possible that, by accepting and retaining the payment of a delinquent assessment with knowledge of all the facts constituting a breach of duty imposed upon an insured, the insurer might waive the right to declare a forfeiture of the contract of indemnity, thereby rendering itself liable thereon (Frasier v. Insurance Co., 39 Or. 342, 64 Pac. 814; Lord v. Society [Mich.] 88 N. W. 876); but, even if the determination of the order were clearly manifest, it would not be binding upon the courts, when conflicting claims to any part of the fund collected by it from its members are involved.

When Stringham, after designating his wife as his beneficiary in the surrender clause, left his benefit certificate with the clerk of Oregon Fir Camp, No. 5,085, he did not request nor did the latter promise to advance the fee necessary to secure the change desired, and hence the neglect to pay the sum required for the purpose indicated was attributable to his fault, and not to the carelessness of the clerk of the local camp. It is true the clerk, the day after Stringham's death, advanced 25 cents, and sent it with the benefit certificate to the head clerk; but, no request therefor having been made by Stringham, such post mortem payment could not revive a right that had never been initiated, if the payment of the fee be a condition precedent to a change of beneficiary.

The rule is quite well settled that the person named in a certificate of a mutual benefit association as the recipient of its bounty has no vested interest in the fund to be distributed until the happening of the contingency insured against, but only an expectancy, which may be defeated by the member to whom the certificate is issued changing the beneficiary. Independent Foresters v. Keliher, 36 Or. 501, 59 Pac. 1109, 60 Pac. 563, 78 Am. St. Rep. 785. "But," as was said by Mr. Justice Bean in that case, "it is equally as well settled that such power must be executed in the manner pointed out by the policy and the by-laws and rules of the order, and any material deviation from the course prescribed will invalidate the transfer." Where, however, the member has performed the part required of him to perfect the substitution, according to the mode prescribed, but, owing to circumstances over which he had no control, the change is not fully effectuated at the time of his death, a court of equity will occasionally aid the defective execution of the power attempted to be exercised. Bac. Ben. Soc. §§ 309, 310. Stringham complied with all the requirements imposed upon him by the rules of the order necessary to substitute his wife as beneficiary, except to pay the fee prescribed. At the time he executed the surrender clause the clerk informed him that the payment of 50 cents was required to secure such change, and, having inquired if the payment of this sum could be deferred until the next meeting of the society, he knew that he had not fully performed on his part all the conditions necessary to effectuate a substitution according to the method prescribed. If, owing to circumstances over which Stringham had no control, the substitution was not entirely consummated at the time of his death, and he had by the prescribed method done all acts required of him therefor, the court might treat the commutation as complete; but since he did not perform on his part all the acts required of him by the rules of the order, and as the failure in this respect was not owing to circumstances beyond his control, a court of equity can grant no relief, for the pay

ment of the fee prescribed was the consideration for the transfer, which the rules of the order demanded should be made in advance, thereby rendering its payment a condition precedent to the substitution.

Stringham having failed to comply therewith, his widow has no legal right to the fund deposited in court, and hence the decree is affirmed.

(41 Or. 151)

SIMMONS v. OREGON R. & NAV. CO. (Supreme Court of Oregon. Aug. 25, 1902.) CARRIERS-PASSENGERS-APPARENT AUTHORITY OF CONDUCTOR OF FREIGHT-STOPPING TRAIN FOR PASSENGER-EVIDENCE-CROSSEXAMINATION.

1. A conductor of a freight train having authority to receive and carry persons on his train on certain conditions, his action in receiving and carrying, in violation of his instructions, unauthorized persons ignorant of the limitations on his authority, is within his apparent authority; so that the carrier will be liable to such persons, as passengers, for injury from negligence of operators of the train.

2. The carrier owes a passenger the duty of stopping the train at a place where he can. in the exercise of reasonable care, alight with safety; and it is not enough to stop at a place not suitable to him to alight, but convenient for its employés to do their work.

3. Testimony of the conductor of a train on which a passenger was injured that he thought a passenger had alighted is immaterial; it appearing that he would not have done differently if he had known he was aboard, and that the accident occurred through failure of the engineer to obey signals.

4. Defendant in action against a carrier for injury of plaintiff while a passenger cannot show, on cross-examination of the conductor, that before the train started plaintiff applied to him for permission to ride, and was told he could not without a permit or pass, and, being subsequently asked for transportation and found to have none, was told to get off at a station before that at which the accident occurred; the conductor's testimony in chief being confined to what occurred at the place of accident, and to the fact that the last time he saw plaintiff was 21⁄2 miles therefrom, when he woke him, and told him the train was approaching the station.

On petition for rehearing. Denied.
For former report, see 69 Pac. 440.

BEAN, J. The point is earnestly pressed that because, under the rules of the defendant, passengers were carried on freight trains only on the conditions and limitations set forth in form No. 208, the conductors of such trains had no authority, real or apparent, to bind the company by receiving any person on their trains as a passenger save on the conditions named; in other words, the effect of the argument, as we understand it, is that the limitations on the authority of the conductor are binding on all persons riding on his train, whether known to them or not. Such a doctrine is, in our opinion, opposed to the authorities, and contrary to the rules governing the relation of principal and agent. It is common learning that a principal is bound, not only

2. See Carriers, vol. 9, Cent. Dig. §§ 1224, 1231