« AnteriorContinuar »
accepting party put his letter to be forwarded into , members, two new partners being taken in without the hands of an agent, the contract is not concluded the knowledge of the bank. Held, that if the letso long as the letter remains in the agent's hands, ter did constitute a contract with the firm as it was even where the agent is the postmaster. Thayer v. when they were written, it did not with the new Middlesex Mut. Fire Ins. Co., 10 Pick. 326; Bryant firm. There was no privity between the bank and v. Booze, 55 Ga. 438.
the new firm. A new party could no more be im4. The acceptance must be unconditional and inported into the contract and imposed upon the bank accordance with the terms of the offer, and given without its consent than a change could be made in within the time prescribed, if any, by the offer. like manner in the other pre-existing stipulations. Andrews v. Garrett, 6 C. B. (N. S.) 262; Jenness v. The bank might have been willing to contract with Mount Ilope Ins. Co., 53 Me. 20; Bruce v. Pearson, 3 the firm as it was originally, but not as it was subJohns. 534; Tuttle v. Love, 7 id. 470; Holland v. sequently. Without its assent a thing was wanting Eyre, 2 Sim. & Stu. 194; Thomas v. Blackman, 1 which was indispensable to the continuity of the Col. 301; Eliason v. Henshar, 4 Wheat. 225; Jordan contract. Barns v. Barron, 61 N. Y. 39; Grant v. v. Norton, 4 M. & W. 155; Routledge v. Grant, 4 Naylor, 4 Cr. 224; Bleeker v. Hyde, 3 McLean, 279; Bing. 653; Wontner v. Shairp, 4 C. B. 404.
| Taylor v. Wetmore, 10 Ohio, 490; Taylor v. McThe most recent case illustrating this proposition Clung, 2 Houst. (Del.) 24; Hunt v. Smith, 17 Wend. is First Nat. Bank of Quincy v. Hale, U. S. Supreme 179; Cremer v. Higginson, 1 Mason, 323; Russel v. Court, October term, 1879, which is as follows: (1) | Perkins, id. 368. A firm in Chicago wrote to a bank in Quincy which 5. An immaterial addition to an acceptance does was cashing drafts on them by their agent, one Mel not prevent the taking effect of the contract. Clive son: “Hereafter we will pay drafts only on consign- / v. Beaumont, 1 DeG. & S. 397; Gibbons v. N. E. ments. We cannot advance money a week in actual Met. Asylum District, 11 Beav. 1; Branson v. Stanadvance of shipment. The stock must be in transit nard, 41 L. T. (N. S.) 474. The latter case was as so as to meet draft same day or the day after pre- follows: The agent for an intending purchaser of sented to us. This letter will cancel all previous property, having made an offer for it, received in arrangement of letters of credit in reference to G. | reply a letter from the vendor's agent accepting the W. Melson. Please acknowledge receipt of this, offer, and fixing a time for signing the contract. and oblige —." The bank replied by its cashier: The purchaser's agent not having attended within “Your favor received. I note what you say. We the time named, the vendor refused to complete. have never knowingly advanced any money to Mel-Held, that the contract was complete, for that the son on stock to come in. Have always supposed it naming of a time for signing a formal contract did was in transit; have always taken his word. After not constitute a condition of the acceptance. Dickthis we shall require ship’g bill.” The firm did not inson v. Dodds, L. R., 2 Ch. D. 463, distinguished. reply to this letter. Held, that the firm did not ac- If the letters constitute a complete contract it will cept the terms of the bank and could not rely on its take effect in spite of a statement in the acceptance promise in the reply sent by it as a contract for the that a formal contract will be drawn up. Bonnewell firm's protection and benefit to not advance money | v. Jenkins, 38 L. T. (N. S.) 581. on drafts without a shipping bill. To give it that 6. Acceptance must be within a reasonable time, effect early and explicit notice to the bank was unless a time is limited in the offer. The next day necessary. Adams v. Jones, 12 Pet. 213; McCollum will answer. Dunlop v. Higgins, supra. But four v. Cushing, 22 Ark. 543; White v. Corlies, 46 N. Y. months after will not. Chicago, etc., R. Co. v. 468; Story on Cont., § 1130. Consequently where Dane, 43 N. Y. 240. the bank cashed drafts of Melson which were ac- 7. An offer may be withdrawn before acceptance. cepted and paid by the firm, held, that the firm could Routledge v. Grant, 4 Bing. 653; Honeyman v. Marnot recover back from the bank the amount paid, ryatt, 21 Beav. 14; 6 H. L. Cas. 112; Chinnock v. even though the drafts were cashed by the bank Marchioness of Ely, 6 N. R. 1; Hyde v. Wrench, 3 without the presentment of shipping bills, and there Beav. 334; Eskridge v. Glover, 5 Stew. & Port. 264; was no stock in transit against which they were | Faulkner v. Hebard, 26 Vt. 452; Beckwith v. Cheever, drawn. Where there is misunderstanding as to the 21 N. H. 41; Burton v. Shotwell, 13 Bush, 271. And terms of a contract, neither party is liable in law or so an acceptance may be retracted before or simulequity. Baldwin v. Middleburger, 2 Hall, 176; Coles v. taneously with its receipt. Dunmore v. Alexander, Bowne, 10 Pai. 526; Utley v. Donaldson, 94 U. S. 48. 9 Shaw & Dunl. 190. Story says (Cont., § 498): Where a contract is a unit, and left uncertain in one “The rule is that if the proposition be made in particular, the whole will be regarded as only in writing, and sent by the post, the person making choate, because the parties have not been ad idem, the offer can retract by a subsequent letter reaching and therefore neither is bound. Appleby v. Johnson, the other party at any time before an answer of acL. R., 9 C. P. 158. A proposal to accept or ac ceptance is written and put in the mail. But as ceptance upon terms varying from those offered is a soon as such answer is placed in the mail the conrejection of the offer. Baker v. Johnson County, 37 | tract is completely closed as to both parties. Al. Iowa, 189; Jennings v. Mount Hope Iron Co., 53 Me. though, therefore, a letter containing a retraction of 20; Chicago and Great E. R. Co. v. Dane, 43 N. Y. | the offer be actually on the way at the time when the 240; Suydam v. Clark, 2 Sandf. Superior, 133. (2) letter of assent is mailed, yet the contract is closed, After the letters were written the firm increased its | unless such letter of retraction be received prior to the mailing of such letter of assent." See Wheat v. | here" will shed but little light upon the question at Cross, 31 Md. 99; S. C., 1 Am. Rep. 28. As to re
issue when the case comes to be made up for appeal. traction of acceptance, Story says (Cont., § 498):
The many men and women whom, when in the
witness-box, we, as stenographers, official and extra“The person assenting cannot, therefore, even stop
official, encounter professionally, it seems to me his letter on the road after it is once mailed." In may all be grouped under the three heads of (1) Good, Byrne v. Tienhoven, C. P. Div., March 6, 1880, 42 L. (2). Indifferent, and (3) Bad. In making this sweepT. (N. S.) 371, it was held that the withdrawal of
ing classification I speak stenographically, and with no an offer, made and accepted by letters sent through |
reference to the interests of the parties at issue. As a
rule, expert witnesses — people who, because of prothe post, is inoperative if the notice of withdrawal
fessional skill, are called upon to examine matters in does not reach the person accepting until after the dispute, or likely to become such-physicians, chemists, letter of acceptance has been posted, unless author microscopists, etc., are, in my opinion, the best. Not ity has been given to notify a withdrawal by merely
necessarily the easiest; indeed, some of them are exposting a letter.
tremely difficult to follow, requiring the short-hand
man to keep his highest pressure of steam constantly For a more extensive treatment of this subject,
on. You all remember how the great Sumner, of see note, 32 Am. Rep. 40.
California, and his partner, “took” Prof. Silliman verbatim, when he talked for several hours at the rate
of 400 or 500 words a minute, I forget which now; but THE WITNESS-BOX AND ITS OCCUPANTS.*
as Mr. Toots said, “ It's really of no consequence." N choosing the foregoing theme, as a thread on which
The good quality of this class of witnesses lies in the
fact that they generally know what they are going to I to string a few ideas, I am not at all unmindful of
say, and say it in the best manner, without “backing the extent to which it would bear being dwelt upon.
and filling:" and if at all experienced "in the ways It would be absurd for a stenographer of limited expe
that are dark," and the questions that are rain, of the rience to attempt to collate an exhaustive essay on tho
opposing counsel, they escape being tangled up on many types of the genus witness, whose statements it
cross-examination. Being, as a rule, well-educated becomes our duty to record as faithfully as may be.
men, they express themselves in good language, and in Therefore, the most I purpose attempting to do is to
their testimony we meet with the least number of dwell briefly upon the characteristics of the more
those debatablo sentences, where a comma will make ordinary types we meet with in court.
sense one way, no comma will cause it to differ entirely At the outset, however, I have a word to say as to
and a semi-colon will introduce a third startling varie the witness-box itself — the rostrum from which the
ation. But we do not always hear the most striking truth, the whole truth and nothing but the truth is
eccentricities of expression coming from the witnesssupposed to be delivered. It varies, as you all know,
box. A distinguished statesman from this district, from a chair on the common level with attorneys and
once, when irritated by repeated interruptious, adstenographer, to a raised platform, or dock, with chair,
dressed the court in this wise: "Your Ilonor, be I or in our older temples of justice, the elaborate snail
in order? If I be, I'll go on." But "what in tho shell where the unfortunate witness is perched, a target
captain's but a choleric word,'' eto. for all eyes, and wearing his heart upon his sleeve for
Mere deliberation of utterance, as before remarked, daws to peck at. This latter device is generally “most
does not make a witness easy to follow, and those tolerable and not to be endured," as Dogberry has it,
versed in the art reportorial will admit the truth of for the stenographer being posted below and at the
the somewhat paradoxical statement that a speaker side, many important words seem to have a peculiar
may be at once easy and diff.cult to take. Every extendency to float off on the upper strata of air and are
perienced stenographer has in his mind tho names of lost. I have heard of a few remarkable instances
people who would be by no means called easy to take, made more brilliant because of their variety -- where
but who yet convey to the scribe, dashing along after the official stenographer was actually consulted by the
them, a feeling of pleasurable satisfaction at the flow board of supervisors, when remodelling the court-house,
of words fitly spoken; sentences terse, yet comprehenas to his position, though I am not now prepared with
sive; and every idea falling into place like tho separato names and dates sufficient for an affidavit. In such a
stones of a mosaio. But I find that I am straying from case, the stenographer can of course avail himsell of
the witness-box. all the facilities that are practicable in regard to bis
I do not intend to limit the list of good witnesses, position, taking care to preclude, among other things,
reportorially speaking, to professional meu. Indeed, the possibility of three or more attorneys, as sometimes
men in all ranks of lifo may be met with, who, being happens, crowding in between himself and the witness,
well developed under the eyes, are likewise blessed when the latter is testifying from a map or diagram.
with good sense and judgment. It is at such a time as that just referred to, when the
Among the indifferent witnesses are those who cannot stenographer is liable to be edified by some such
be made to understand, even by the combined efforts dialogue as this: “From here to here, you say, is more
of court and counsel, that there being a time for all than forty rods?” “Yes, I know it is; from here."
things, an opportunity will be afforded for their re“From here! you said from here, a minute ago.”
lease, if possible, from all the contradictions in which “No, I didn't either. I said from here.” “Well, the
a direct answer may seem at the time to involve them, jury will remember what you did say.”
but who persist in stopping to administer to the jury And at this point the juvenile Blackstone who is
an antidote for every drop of poison. trying his 'prentice hand at taking notes for the ex
Of this class is the cautious man, who seldom comamining counsel, nods to the stenographer and says,
mits himself, and who is bound that none of them 'ere authoritatively, “You took that down, didn't you?"
lawyers shall come any game on him. I remember, But such episodes as the foregoing are, I think, de
while reporting an arsou case in Vermont, a witness creasing in frequency as the presiding judges come to
was testifying as to an incendiary fire which he found pay more attention to the securing of an intelligible
burning on the hearth in one of the rooms of the record; interposing when necessary, as a general thing,
house. He was describing what the burning mass aud reminding the learned counsel that “From here to
seemed to be composed of, when the presiding judge * Read at the late Convention of Stenographers, by A. L.
interposed with the suggestion that he probably meaut Woodward, of Syracuse.
combustible material. But the wily Green Mountain
boy avoided the pit-fall by remarking, “Wal, I dunno children of deceased members and to such uses as the as I ever heerd 'o wood bustin',” while the learned member should by will direct, where the funds were judge leaned back and seemed to meditate on the
raised by initiation fees and assessments on the death
of each member, held to be an insurance company, and dangers attending the use of big dictionary words.
under a statute authorizing benevolent societies to reProlixity is not an agreeable feature of the indiffer
lieve the widows and orphans of members, but not to ent witness. When one of the wordy kind, in love
insure the life of any member for his own benefit or the with sound of his own voice, and big with idea of hav.
benefit of any other person, held, not exempted from ing such an audience, pours forth an uninterrupted an obligation to comply with the general law on the flow of words, while page after page slides out from subject of insurance. under the stenographer's pen, then doth the latter per
A CTION to determine the right of defendant, an sonage rage inwardly at the wasting away of the gray
A association organized with the object, as stated in matter of his brain over a farrago of immaterial stuff, which ho dares not omit lest percbance something per
its constitution, “to give financial aid to tbe widows
and children of deceased members, or to such uses and tinent to the issue might be lost. Coming to the last class, the bad witness (again
purposes as such meinber shall by his last will and tesspeaking in a stenographic sense), but little need be
tament direct," to conduct its operations without said. You all know him. He is ubiquitous. He it is,
complyiug with the general statute of Missouri relatwho, fresh from Fatherland, rejoicing in the possess
jug to insurance. The facts sufficiently appear in the ion of two dozen words of English, essays to give an
opinion. account of an assault and battery occurring next door, NAPTON, J. Two points arise in this case, both of and as he warms up over his theme, he pieces out the which have been fully discussed at the bar. The first incomplete sentences with German, aided by graphic question is whether this company or corporation, degesticulation, and at the conclusion of his parrative fendant, is doing, and authorized by its constitution perchance the court says, “I didn't fully understand
to do, an insurance business; and the second point is his story. Mr. Stenographer, won't you just read it?” based upon an assumption, that though it may be so
Something deserves to be said of the irate female authorized and so employed, it is still not within the witness who pours forth her wrongs in a torrent of statute laws in regard to insurance companies, but exthunder, lightning and wind, that at its conclusion pressly exempted by the Legislature from any such leaves the unfortunate short-handist a total wreck. obligation to comply with the general law on the subwith a very vague remembrance of any thing she said, ject of insurance. except a reverberation in his ears of “Says I — says The first question seems to be of easy solution, she-says I - says she."
whether regarded in reference to the definitions of inI have been able to mention here but a few as illustra surance adopted in the text-books, or to specific juditions of the good, the not so good, and the worst, cial decisions. The origin of life insurance, as we are among witnesses, but all will be able to call up from told by all writers on the subject, is traceable to their own personal experiences examples brighter, and benevolent motives. The object was to secure to the perhaps darker, than those I have enumerated. Our family of a person who was dependent on a salary or profession is becoming, year by year, more appreciated other income which ceased with his life, support upon by the bench, the bar, and the public generally, and the death of the insured by a small contribution of the certainly with appreciation must come a desire to pro annual income, and this, it is apparent, was a laudable mote the best work of the competent stenographer, and benevolent object. In France, we are told, life aud reuder him more useful than ever; and this may insurance was in early times prohibited, on the ground be dove, is being done, and will be done more thor that it might operate as an incentive to those who oughly in the future by a little more consideration on would benefit by the termination of life to hasten such the part of counsel as to how a question to a witness, termination; but in England it was adopted by the an argument, or a request to the court, would look on | judiciary long before its sanction by Parliament, upon paper. The best work of the stenographer at any time an assumption, not unusual with those islanders, of a is not easy, but he is oftentimes hampered by annoy superiority in popular morals over their Continental ances which a little kuowledge ou the part of attorneys neighbors; and in this country it followed the comas to the capabilities of our art would preveut. To mon law of England into such States as adopted that the leaders in the profession, men of large and varied | system, but has been so entirely regulated by special experience ---some of whom are here to-day - almost legislation here, and probably in all other States, that every thing in the way of “taking" is possible, but it any reference to its original character becomes unmust annoy even such when one counsel continues an necessary. uninterrupted examination of the witness while au The definition given by Bunyon, an English writer other is making a formal objection to the court - his on the subject, is probably as complete as any to be honor meanwhile ruling on the several grounds--while found in the text-books. He defines life insurance to a third requests the stenographer, by a pod of the be “that in which one party agrees to pay a given sum head, to note an exception. But as I have said, better upon the happening of a particular event contingent appreciation of our services will in time lead to a style upon the duration of human life, in consideration of of examinatiou fitter to be photographed by the swift tho immediate payment of a smaller sum, or certain pen, as compared with that which in the days of loug equivalent periodical payments, by another.” The handed note-taking admitted of being penued, and Supreme Court of Massachusetts defined it to be “a revised, and put in shape for going upon the record. contract by which one party promises to make a cer
tain payment upon the destruction or injury of someSTATUS OF BENEVOLENT SOCIETIES IN thing in which the other party has an interest, whatSURING THE LIVES OF THEIR
ever may be the terms of payment of the consideration
or the inode of estimating or securing payment of the MEMBERS.
sum to be assured in case of loss." This definition of MISSOURI SUPREME COURT, NOVEMBER, 1880. the Massachusetts court was given in a case in which
the facts were identical, substantially, with the one we STATE OF MISSOURI V. MERCHANTS' EXCHANGE MU
now have under consideration. The only question in TUAL BENEVOLENT SOCIETY.
that case was, whether the charter of a company called An association described as the “Merchants' Exchange
the Compecticut Mutual Benefit Company, was in Mutual Benevolent Society," the object of which was
effect a life insurance corporation. The name of the stated to be to give fpancial aid to the widows and I company was the Connecticut Mutual Benefit Com
pany," and in its constitution recited its object to be the corporation. In the constitution of the present mutual benefit and relief in case of death as herein society it is true that no guarantee bond of $100,000 is after set forth. The affairs of the company were | provided for, but by reference to article 15 of the byintrusted to a board of directors, and its officers were laws it will be seen that a similar fund, though called a president, secretary, treasurer, etc. The funds of by a different name, is provided for. That article is as the company were raised by adinission fees of mem follows: "Article 15. The entrance or initiation fee bers and assessments, as prescribed in the by-laws. shall belong to and be invested as a permanent fund, The rate of fees was fixed according to certain enu each of the classes being kept separate on the books of merated classes, and those who paid the largest pre the society; provided that the board of trustees are miums were entitled to a proportionate increase of authorized to employ, from time to time, as they in dividends. In the case we have under consideration their discretion may deem best, one or more persons the title of the corporation is “Merchants' Exchange to act as solicitors for the purpose of obtaining memMutual Benevolent Society of St. Louis," the words bers to this society, and to pay such solicitor for his “mutual benefit" being exchanged for “mutual services out of the permanent fund, not to exceed the benevolent." The object stated in the constitution sum of $1 for each member so obtained. The interest of the society is: “To give financial aid to the widows on the permanent fund, with the amount assessed and children of deceased members, or to such uses and against each member on the death of a fellow-member, purposes as such member shall by his last vill and tes together with all gifts or income received by the socitament direct." The election of nine trustees was ety, shall be placed to the credit of the contingent provided for, and appointment of the necessary offi fund and used for advances for members, in anticipatcers, of president, secretary and treasurer. The funds ing their dues on the deatb of a fellow-member, dewere raised by initiation fees, and classes were arranged fraying the current expenses of the society, as may be as in the Connecticut charter; in short, it is impossible directed by the board of trustees; but if at any time to see any material difference in the two schemes. The the contingent fund shall exceed the wants of the opinion of the court was that the corporation or asso society for the purpose named, the trustees shall order ciation was an insurance company, and came within the same to be invested in bonds." the meaning of the Massachusetts statute. I am not This opinion of the Supreme Court of Massachusetts, satisfied that I could express the views of this court if it be a sound one, would seem to be quite conclusive on the first point in the present case in a more con on the first point discussed in this case, but as the densed, comprehensive or pointed form than will be opposite view has been maintained with mucb confidone by simply employing the language of the Massa dence in the argument of counsel for the defendant, it chusetts Supreme Court: “The contract made between | may be proper to show by the decisions of other courts the Connecticut Mutual Benefit Company," says Judge that it has been generally acquiesced in, indeed, I may Gray, who delivered the opinion of the court, “and say, uniformly adopted where there were no legislative each of its members, by the certificates of member enactments requiring a contrary construction. The ship issued according to its charter, does not differ in case of Schunck v. Gegenseitiger, Wittwen und Waisen any essential particular of form or substance from an Fond, 44 Wis. 370, is merely an assumptiou on the part ordinary policy of life insurance. The subject in of counsel on both sides, in which the court concursured is the life of the member. The risk insured is red, that the corporation defendant was a mutual death from any cause pot excepted in the terms of the insurance company. The name as translated from the contract. The assured pays a sum fixed by the direct German was the Mutual Widows and Orphans' Fuud. ors, and not exceeding $10 at the inception of the con It was a corporation organized and acting by the autract, and assessments of $2 each annually, and of $1 thority of the Grand Lodge of the United Ancient each upon the death of any member of the division to Order of Druids. The grand lodge consisted of reprewhich he belongs, during the continuance of the risk. sentatives from the several groves, which, together In case of the death of the assured by a peril insured with the association, were under the jurisdiction of against, the company absolutely promises to pay to his the grand lodge, and the court declared that the derepresentatives, in sixty days after receiving satisfac fendant “ was obviously organized to secure the ends tory notice and proof of his death, as many dollars as or serve the purposes of a mutual life insurance comthere are members in the same division, the number pany.” The description given by the court of the of which is limited to 5,000. The payment of this sum character and operations of this company, with unimis subject to no contingency but the insolvency of the portant changes as to details, would apply to the corcorporation. The means of paying it are derived from poration defendant here. “Among the provisions of the assessments collected upon his death from other the constitution and by-laws adopted for its managemembers, from the money received upon issuing other ment,” says Cole, J., “is one which provides that, on certificates of membership, which the by-laws declare the death of a member in good standing, there shall may, after payment of expenses, be used to cover losses be paid to his surviving widow or heirs the sum of $800 caused by the delinquencies of members, and from the | as life insurance. The funds under the control of the guaranty fund of $100,000, established by the corpora defendant are made up chiefly of dues paid by memtion under its charter. This is not the less a contract bers on admission into the order, and assessments of mutual insurance upon the life of the assured be levied upon and paid by the members on the death of cause the amount to be paid by the corporation is not a brother. The managing authority of the defendant a gross sum, but a sum graduated by the number of is termed a directory, which is chosen by the groves members holding similar contracts, nor because a por from their members, each grove that has not more tion of the premiums is to be paid upon the uncertain than seventy-five members being entitled to one memperiods of the deaths of such members, nor because in ber in the directory and to an additional member for case of non-payment of assessments by any member, each additional seventy-five or fraction exceediug onethe contract provides no means of enforcing payment half that number. This directory conducts the whole thereof, but merely declares tho contract to be at an management of the defendant, fixes the amount of the eud, and all moneys previously paid by the assured, assessment to be paid by the members ou notice of and all dividends and credits accrued to him to be for- | the death of a brother, issues through its correspondfeited to the company.” 105 Mass. 149.
ing secretary to all the groves a demand of payment The fact offered to be proved by the defendant, that of such assessments, and also determines whether the the object of the organization was benevolent, and not claims of the survivors of the deceased are just. speculative, has no bearing upon the nature and effect | Every member of a grove is obliged to contribute to of the business conducted and the contract made by I the fund by paying his admission fee and assessments,
and is entitled to participate in its benefits. The ad- required, nor to any schemes where the object was not mission fees and assessments are paid by the members to raise public revenue, the court, with only a single to their respective groves, the groves paying over all dissenting voice among the eight judges, did not hesidues to the directory." The point decided in the case tate to declare the scheme within the constitutional has no connection with the present question under prohibition as well as that of the statute. consideration, but it is an answer to the position taken The case of Commercial League Association of in this case, and somewhat urged in argument that dmerica v. People, 90 Ill. 166, has been referred to as there was no contract provided for by the constitution couflicting with these decisions, but it cannot be so and by-laws of the present society; that the officers considered. That company was conceded to be an inwere merely collecting agents and their performance surance company, but it was held exempt from the of such voluntary duties could not be enforced. The general statutes regulating insurance, because of a court held that the groves were a part of the machin special exemption in a special statute. We have no ery of the corporation for collecting assessments, and such statute here, but we bave statutes which are were as much agents of the corporation as of the mem claimed to have the same effect, and this leads us to a bers paying, and their neglect to pay over the money consideration of the second point. collected could not affect the representatives of the Assuming the defendant to be a mutual insurance deceased member, but that the corporation was liable, company, it is claimed that our legislation in regard to and judgment was accordingly given against it.
corporations which are termed benevolent associations, In Erdman v. Mutual Insurance Co. of the Order of and especially article 10, contains provisions which exHermans' Sons, of Wisconsin, 44 Wis. 376, the title of pressly exempt the defendant from the provisions of the company sufliciently indicates its character. But | the general law in regard to insurance. This point is the machinery for collection and contribution and dis not without difficulties, arising from the very peculiar tribution seems to have been essentially the same as history of our recent legislation. in the case just referred to. In Dietrich v. Madison On the 8th of March, 1879, the following statute was Relief Association, 45 Wis. 79, we have another corpo passed : “Section 1. That chapter 70 of the General ration of the same class and managed iuthe same way. Statutes of Missouri, being article 8 of chapter 37 of No question was made as to its being a mutual life in Wagner's Statutes of Missouri, relating to benevolent, surance company. In a recent case in Kentucky religious and educational associations, is hereby (Kentucky Masonic Ins. Co. v. Miller, 13 Bush, 489), amended by adding the following sections thereto, the same doctrine is recognized without question. to wit: Sec. 14. The associations and societies of the
So in Masons' Benevoient Society v. Winthrop, 85 Ill. character referred to and mentioned in the first section 537, there was no question raised as to the corporation of this act may also include in their corporate powers being an insurance company, but the statement of the | the privilege for providing for the relief and aid of the case shows no essential difference between it and the | families, widows, orphans or other dependents of their benevolent society which is defendant here. The cove deceased members, or for assistiug such as may be sick pant which was sued on consisted of a promise or or disabled, from the proceeds of assessments upon the agreement by the society to pay to the wife of the de members of such society or association. Sec. 15. Any ceased member, ou satisfactory proof of his death, a such society or association heretofore or hereafter incertain sum of money, depending on the class of which corporated under the provisions of this act may avail he was a member. The court say the organization is a itself of the benefits of tbe foregoing section by kind of mutual benefit association, managed by a amendment to its constitution or articles of associadirectory, and the expenses and losses of the society tion in the manner prescribed by this act; all such are paid by assessments made upon the members for societies or associations are hereby declared exsuch purposes. The court declares the certificate of empt from the operation of the General Statutes of membership in the nature of a policy of insurance on this State in regard to insurance companies." the life of the member. In Illinois Masons' Benevolent On the 19th of May, 1879, another act was passed, enSociely v. Baldwin, 86 III. 479, the corporation was titled an act to provide for the incorporation of benevotreated by the court, without question, so far as it ap lent, religious, scientific and educational associations, pears, as an insurance company.
and of miscellaneous associations. The first section is A decision of the Court of Appeals in New York, not materially different from the correspouding section affirming one of the Supreme Court, has been referred in the Revised Code of 1865, as found in Waguer's to, though not on the subject of insurance, but to show Digest, page 339. The third section is as follows; how little importance was attached by the judiciary of | “Any association formed for benevolent purposes, inthat State to names or ostensible objects of association cluding any purely charitable society, hospital, asylum, when their organization and real effect was in conflict house of refuge, reformatory and eleemosynary instiwith the Constitution of the State. In the case of tution, any association whose object is to promote Governors of the Alms House, etc., v. American Art temperance or other virtue conducive to the well-being Union, 7 N. Y. 228, the corporation was professedly of the community, and generally any association devoted to the encouragement and promotion of the formed to provide for some good in the order of befine arts, and the works of art purchased were dis nevolence that is useful to the public, may become a tributed every year among the members by lot. The body corporate and politic under this act, and inciConstitution of the State had this provision: “No lot. dentally such association may provide means wheretery shall hereafter be authorized in this State, and the with to assist its sick or disabled members, or relieve Legislature shall pass laws to prevent the sale of lot- or aid the families, widows, orphans or other dependtery tickets within this State, except,'' etc. There was ents of its members who may die, without being also a statute which provided that “no person shall thereby subjected to the operation of the general set up or propose any money, goods or chattels, or statutes of this State relating to life insurance; prothings in action to be raffled for, or to be distributed by | vided that nothing herein contained shall be construed lot or chance to any person who shall have paid, or con to authorize any such association formed hereunder to tracted to pay, any valuable consideration for the | insure the life of any member thereof for his own chance of obtaining any such money, goods or things benefit or that of any other person." The concluding in action." Notwithstanding the ingenious argument section of this act contains the following clause: of Mr. O'Conor that the term “ lottery" used in the “Section 14. All acts and parts of acts inconsistent Constitution was not designed to apply to games of with this act are hereby repealed, provided that nothchance, where no skill on the part of the player was ing in this section shall be prejudicial to any existing