Langdon v. Massachusetts Benefit Ass'n , 166 Mass. 316 ( 1896 )

Morton, J.

The case of Margesson v. Massachusetts Benefit Association, 165 Mass. 262, is in point, and decisive of this case if it is open to the plaintiff to contend that he was not bound to pay the assessment. The defendant denies that it is open to the plaintiff to make that contention. It relies on the statement in the agreed facts that “the call was madé in accordance with the provisions in the said policy contained,” and on the inherent evidence afforded by the manner in which the agreed facts are drawn that no such question was intended to be raised. But it is to be observed that it is nowhere agreed that the amount named in the call was justly due. That point appears to have been left open designedly. It is hardly conceivable that it could have been otherwise, when the call on its face expressly stated that it was “ for mortuary and disability purposes, and not exceeding one thirtieth of one per cent on the amount insured for expenses under Article XVI. of the By-Laws of this Association, and in accordance with the statutes of Massachusetts,” and when the certificate provided' as plainly for an annual payment of ten dollars, and an assessment on the death of any member of an additional sum of sixteen dollars and twenty-five cents, and for nothing more. It was not contended by the defendant at the argument that the amount named in the call consisted of mortuary assessments. The most that was contended was that there had been deaths, the assessments for which would have amounted to as much as or more than the one which was made. We think, therefore, that by the phrase referred to was meant, not that the amount for which the assessment was made was due, but that the call was issued in the manner provided by the certificate, and that under the agreed facts it is open to the plaintiff to contest the validity of the assessment. That being so, it follows from Margesson v. Massachusetts Benefit Association, ubi supra, that the plaintiff’s testator was not. bound to pay under the notice which he received, and was not in default by reason of his failure to pay the assessment.

The offer to pay the assessment was not accepted by the defendant, and was withdrawn by the bringing of the suit, and cannot be regarded as constituting a waiver of any objection to the validity of the assessment. Hill v. Commercial Union Assurance Co. 164 Mass. 406. Copp v. Williams, 135 Mass. 401. Taylor v. Cole, 111 Mass. 363.

The view which we have taken of the construction to be given to the agreed facts renders it unnecessary to consider the question which was argued at the bar, whether the state of tho testator’s health furnished a valid excuse for the non-payment of the assessment.

In accordance with the terms of the agreed facts, the entry must be,

Judgment for the plaintiff for $5,000, and interest from the date of the writ, and it is so ordered.