Beeman v. Farmers Pioneer Mutual Insurance , 104 Iowa 83 ( 1897 )

Granger, J.

1 I. There was no estoppel because of the second assessment, for the reason that it was the right, if not the duty, of the association to make it. The building 'burned was but a part of the property insured, and by the terms of the contract the plaintiff could at any time within the life of the policy on its face pay delinquent assessments, and restore the policy. The language of the article of the constitution of the association above quoted is: “Should any member fail to pay his assessment within thirty days from the date of the notice of his assessment, his insurance shall be null and void until such assessments are paid.” The only way of making assessments delinquent was to give notice, so that the thirty days might run in which payment could be made, and avoid delinquency. The same article provides that a delinquent member shall be liable for assessments levied while he is delinquent because of a prior assessment. Thus it will be seen that the liability of the plaintiff continued as to other assessments, and the only way to escape such liability is by payment of assessments due; when, .under article 14 of the constitution, he may withdraw from membership. Under such conditions there could be no estoppel because of making the assessment. There is nothing in McGowan v. Northwestern Legion of Honor, 98 Iowa, 118, to sustain such a claim.

2 II. Both assessments were paid, on the twenty-seventh of March, 1896, which was sixteen days after the loss occurred, and it is said that the acceptance of payment was a waiver of forfeiture of the policy. Numerous cases are cited to support the claim of waiver, but none of them are based on facts the same, in substance, as in this ease. The payment of these assessments was necessary to restore the insurance provided for in the policy for the remainder of the period of five years. -The plaintiff had the right to make the payments, and the association was bound to accept them, in order to revive the policy for the remaining time it had to run. There is not a word of testimony that the plaintiff paid under a misapprehension as to his lights 'because of it; not a word that he was misled by the acts or statements of the officers of the association. The record simply shows that he paid what was due from Mm, and the law fixed 'Ms rights because of it under the terms of Ms contract with the association. By the very letter of his contract, he had no insurance when the loss occurred, because of his delinquency.

3 III. It is said that the notices of the assessments are not sufficient, as not being in conf ormity to chapter 210, Acts Eighteenth General Assembly, for which reason the policy did not become void as to the insurance. It is a matter of fact that the notices did not conform to such requirements, either as to matter or form of service; but appellee contends that the chapter has no application' to associations organized on the mutual plan. The f ollowing is section 1 of the chapter referred to: “Section 1. That in every instance where a fire insurance company or association, doing business in this state, shall hereafter take a note or contract for the premium on any insurance policy, or shall hereafter take a premium note or contract which, by its. terms, or by any agreement or rule of the company or association, is assessable for the premium, due on the policy for WMch it was given, such insurance company or association shall not declare such policy forfeited, or suspended for non-payment of such note or contract except as hereinafter provided, anything in the policy or application to the contrary notwithstanding.” The other sectionis provide for a notice to' be given before a forfeiture can be declared for unpaid premiums, and what the notice shall contain. The section quoted, contains all the language as to what companies or associations are within the provisions of the act. The defendant association is organized under the provisions of an act of the Sixteenth General Assembly (chapter 103) and amendatory acts. If is> organized on the plan of maMng mutual pledges and giving valid obligations to each other for their own insurance from loss by fire. Such associations are expressly prohibited by the act from receiving premium® or making dividends. Referring to tbe section quoted from the act of the Eighteenth General Assembly, it will be seen that the act applies to companies or associations having a note or contract for a premium on an insurance policy, or a premium 'mote or contract, which, by it® term®-, or by an agreement or rule of the company or association, i® assessable for a premium due on. a policy. The act has to do only with association® or companies allowed! to- receive premiums-, and this, association is not, -and doe® not do- it. The obligations of the members are for assess-ra-emt® made oral the mutual plan, which the act under which it was organized does not recognize as- a premium, for it provides for such obligations, but prohibits receiving premium®. The several provision®, of the statute are conclusive of the question. Neither the policy nor the laws of the association provide for a premium, so that, a® is thought by appellant, the policy is, not the contract contemplated by the act. The judgment is affirmed.