Weyrich v. Grand Lodge, Independent Order of True League , 1891 Mo. App. LEXIS 474 ( 1891 )

Rombauer, P. J.

The plaintiff sues to recover a death benefit of $700, alleged to be due to lier from the defendant. Át the close of the plaintiff’s evidence the trial court instructed the jury that she could not recover. This instruction, as her counsel now assert, was given because the trial court was of opinion that the contract sued upon was ultra vires of the defendant corporation, and whether it was so or not, and whether such a defense was available to the defendant under the pleadings, are the sole questions argued in the brief of plaintiff’s counsel. On the other hand defendant’s counsel contend that the instruction was properly given, because the plaintiff ’ s evidence failed to disclose any promise on defendant’s part to pay to the plaintiff any snm whatever, and the brief filed by them deals exclusively with that question. If the defendant’s view of the probative force of the evidence is correct, then the further question whether the defendant had or had not the legal power to make the alleged promise is immaterial. We must, therefore, first decide whether the defendant's contention is correct.

The plaintiff’s evidence tended to show the following facts: She is the widow of Louis Weyrich, who in his lifetime was a member of the Humbold Lodge of the True League. Many years ago lodges of an organization for benevolent purposes were formed, known as the True League. They had a central organization known as a grand lodge, composed of representatives of the individual lodges. Prior to the time when the plaintiff’s husband became a member of Humbold lodge, which was one of these individual lodges, the grand lodge became incorporated, its object of incorporation in the articles being stated in the following manner:

“The objects of the association shall consist in benevolence, charity, and mutual aid among Its members, and shall be attained by the formation of a brotherhood.”

The grand lodge caused a pamphlet to be issued which contained the following statements purporting to be part of its constitution :

“STATUTES OF DEATH FUND.

“ Purpose. — The death fund was organized in order to aid the family of the deceased member in such manner that they should be enabled, if possible, to maintain themselves by a proper investment of the benefit sum. Only unquestionably just demands on the part of the lodges of this order, such as lodge moneys in the hands of the officers, moneys borrowed on time or advances, and expenditures on funerals, shall be deducted from the benefit sum ; other creditors of the deceased and administrators of estates have no demand upon the same.

“Sec. 1. Membership.— All the lodges of the U. O. T. B. have jointly bound themselves, upon the death of a brother entitled thereto under the constitution and by-laws, to pay the sum of $700 to his heirs, provided he has not already, through the death of his wife, received the sum of $200 awarded in such cases j in the latter case the family is only entitled to $500.

“Sec. 3. Every member is looked upon as .a lawful member from the date 'of his admission.

“Sec. 5. Payments of assessments.- — Dues must-be paid to the grand treasurer upon acquittance by every lodge within fifty days after the date of demand by the grand secretary.

“ Sec. 7. Rights. — The following designated heirs-of a deceased brother are only entitled to the death benefits, if his lodge at the time of his decease was not, as in previous sections stated, in arrears in dues or in assessments, not excluded in consequence of a finding, and provided the brother himself at the time of his decease was entitled to assistance under the by-laws and books of his lodge.

“ Sec. 8. Expulsion of a member from a subordinate lodge shall exclude him also from the death benefit fund.

“ Sec. 9. Heirship. — Upon the death of a brother in a lodge of the True League Order, if the conditions contained in the preceding article have been fulfilled, and the sum fixed in the case of death of a wife has not been previously collected, the sum of $700 (in latter case only the sum of $500 ) shall be paid to the following heirs: First. To his widow, provided they were living together in lawful wedlock, or if there be no widow, then, secondly, to his' children in equal proportions.

“ Sec. 10. Payment and security. — The grand treasurer is obliged to pay the benefit sum within sixty days to the heirs legally entitled thereto.

“ Sec. 22. Change of death benefit statutes. — These statutes of the death benefit fund can only be changed in a regulgfr session of the grand lodge of the state of Missouri, after a written motion to that effect shall have been made by five representatives in a previous meeting.”

The pamphlet was delivered to the members of the individual lodges, when they became such, and the contributions made by such members to their lodges were presumably made on the faith of the statements therein contained. The plaintiff’s husband became a member of Humbold lodge in or about the year 1884. The grand lodge had no account with the members of individual lodges. Upon the first death occurring in any one year it caused án assessment on all individual lodges to be made, based on the number of its members, and such assessments were remitted by each individual lodge to the grand treasurer upon demand of the grand secretary. Out of the moneys thus received, the grand treasurer paid death benefits until the money was exhausted, and then another similar assessment was made on all individual lodges. With the initiation, retention or expulsion of a member in and'from the individual lodge, the grand lodge has nothing to do. That is a subject with which the individual lodges deal exclusively. The officers of the grand lodge only know the membership of individual lodges by reports made to them from time to time by officers of these lodges, and they based the assessment made on each lodge upon such reports.

The treasurer of the grand lodge refused to pay the amount of $700 claimed by the plaintiff, owing to the fact that, prior to the death of plaintiff’s husband, it was officially reported to him that the plaintiff’s husband had ceased to be a member of Humbold lodge through his failure to pay some of the monthly dues. This is in substance all the evidence bearing on the question under consideration.

Believing that it was the object and aim of this association of lodges to secure to the widow of every one, who at the date of .his death was a member of one of the lodges thus associated, the sum of $700 for investment, and believing further that the most convenient way of attaining that object would be to make the grand lodge primarily liable for that sum in case of death, we have carefully examined the entire record to ascertain whether any express promise on the part of the grand lodge to that effect-could be gleaned therefrom. The only express promise contained anywhere is to be found in section 1, of the statutes of the death fund, which reads as follows :

“ All the lodges of the U. O. T. B. have jointly bound themselves, upon the death of a brother entitled thereto-under the constitution and by-laws, to pay the sum of $700 to his heirs, provided he has not already, through the-death of his wife, received the sum of $200, awarded in such cases; in the latter case the family is only entitled to $500.”

This is a promise of all the lodges (each, as above seen, having a representative in the grand lodge) to-pay that amount jointly, and not a promise of the grand lodge as such. The language used is unambiguous, and there is no room for any other interpretation. We can only declare the contract which the parties have seen fit to make, and the fact that its enforcement when resisted may be inconvenient is a matter which is not for our consideration. Nor is there any other part of the laws concerning the death fund which would force us to give to the language used any other meaning than its terms import. The fact that the amount is to be paid by the grand treasurer direct to the beneficiary in no way militates against the position contended for by the defendant, that the grand lodge and its officers were mere collecting and disbursing agents of the death fund for the associated lodges, and in no sense ■ original promisors to pay any specified amount to any beneficiary upon an independent contract of their own.

The laws concerning the death fund promulgated by the corporation, if they are to be construed without the aid of extraneous evidence, must be construed as a whole. We cannot reject one part on the theory that it is a mere preamble, and retain the other on the theory that it is the gist of the promise, and moreover a promise made to the member of another organization. Where the treasurer of a corporation is ordered to pay a certain sum upon a certain contingency to a designated party, this may be equivalent, in absence of other evidence qualifying the direction, to an express promise on part of the corporation, provided it is supported by a sufficient consideration between the corporation and the promisee. But the record here discloses no such facts. The direction is qualified by the preceding clause. It does not appear that the plaintiff ever contributed anything to the corporation itself, or even entered into any contract relation with it; because, as above seen, he was neither a member of the corporation, nor had the corporation any control whatever over him. The organization of this corporation is unusual. All its contract relations are with the lodges, and not with the members, and, as far as the record discloses, it exercises no control whatever over the latter. •

In almost every case, which has heretofore come before us, the suing member was a member of the corporation sued, and in almost every one of them he sued upon a written promise evidenced by a certificate issued to him directly by, and defining the liabilities of, the defendant corporation. As such is the usual, if not the universal, method adopted by these benefit societies in entering into contracts, and as the evidence shows that even this corporation has since adopted that method, no complications can arise from the present decision, even if that fact, were entitled to any controlling weight.

Coming to the question of ultra vires, and waiving the point whether such defense should be made by special plea, it would seem that that question also has some bearing on the case. Under the charter offered in ■evidence, the contract, as claimed by the plaintiff, is not within the enumerated objects of the corporation. According to the better rule, a corporation, in the absence of a statute expressly prohibiting it from exercising certain power, or in the absence of a public policy working such prohibition, is estopped from asserting that the contract was beyond its powers, after it has received its benefits. It should certainly be thus ■estopped, unless it can and does restore to the other ■contracting party the benefits received, and especially •so when such benefits were received with knowledge ■of its want of a contracting power. Bradley v. Ballard, 55 Ill. 413; Matt v. Mut. Proc. Society, 70 Iowa, 455; Folmer's Appeal, 87 Pa. St. 135; Bloomington v. Blue, 120 Ill. 121; National Bank v. Matthews, 98 U. S. 621.

In the case at bar, however, one of the mooted ■questions is, whether the defendant corporation as •such did receive any benefits, and the answer thereto •depends upon the question whether the defendant was a promisor or a mere distributing agent; hence, the value of the plaintiff’s second' argument depends upon the correctness of her first argument, or otherwise it is mere reasoning in a circle.

Whether the plaintiff has any remedy against the treasurer of the grand lodge by mandamus, provided ■he has sufficient funds in his hands for her payment, or •against the secretary, provided there are no such funds, ■and provided her claim is in other respects valid ; or whether she has a similar remedy against the grand lodge, for failure to levy an assessment on the lodge for the purpose of putting the grand treasurer in funds for her payment, - are entirely different propositions from the one herein discussed. In the present action, the-plaintiff sued the defendant upon a direct promise, and, having failed to establish it, she must necessarily fail.

The judgment is affirmed.

Judge Biggs concurs-Judge Thompson dissents.