Allen v. Merrimack County Odd Fellows' Mutual Relief Ass'n ( 1904 )

The meeting warned for August 17, 1900, was not legally held, the month's notice required by the by-laws of the association not having been given; and if we assume that the written notice that was given did not sufficiently indicate the nature of the business to be considered at that meeting, or that the by-laws which were enacted introduced changes of such a fundamental nature as to impair vested rights of the assured (Dow v. Railroad, 67 N.H. 1; Pain v. Societe, 172 Mass. 319; Kent v. Company,78 N.Y. 159; Parish v. Produce Exchange, 169 N.Y. 34; Weber v. Supreme Tent K. of M., 172 N.Y. 490; Stohr v. Society, 83 Cal. 557; Wist v. Grand Lodge,22 Or. 271; Niblack Ben. Soc. 44-66; Marsh Corp., s. 333), still the plaintiff cannot maintain this action if the assured consented to their adoption or acquiesced in their enforcement. Evans v. Association, 76 N.Y. App. Div. 151; Morrison v. Dorsey, 48 Md. 461; 2 Mor. Corp., ss. 618, 623, 630; 3 Clark Marsh. Corp., s. 642.

There was a general verdict for the defendants. It is to be presumed that all material questions of fact not specially found and of which there was evidence were determined in their favor. Allard v. Hamilton, 58 N.H. 416; Noyes v. Patrick, 58 N.H. 618; Hall v. Nelson, 59 N.H. 573, 574. The question, therefore, presented by the plaintiff's exception to the verdict is whether there was evidence from which the trial court could have properly found that the assured consented to the amended by-laws or acquiesced in their enforcement. If there was such evidence, the verdict must stand.

There was evidence that on July 23, 1900, the secretary mailed to the members of the association a written notice which stated that at the semi-annual meeting, held July 20, it was voted to adjourn to four weeks from that night, when a motion to wind up the association and devise some new way to insure the members would be considered, and that an adjourned meeting would be held for this purpose at the rooms of the association in Concord, on Friday, August 17, at 7:30 in the evening. A meeting was held at that time and was adjourned to August 24, when certain by-laws were repealed and the laws now in question adopted. A few days later copies of these laws were mailed to the assured. They required him to pay an assessment of $1.20 every month to the association, and as he was over fifty years of age at the time of their adoption, entitled the plaintiff to receive upon his death only the amount of the assessments which he had paid, unless the guaranty fund then equaled $10,000; whereas, under the old by-laws, the plaintiff would have been entitled to receive a sum equal to one dollar for each member in good standing, not in all exceeding $1,000, and the assured was required to pay but eighty cents upon the death of a member. After the enactment of the amended bylaws and down to the time of the assured's death, a period of about a year and a half, he paid to the association each month an assessment of $1.20, without notifying the association that he did assent to the changes. From this evidence it could be found that the assured was aware of the amended by-laws and of the circumstances under which they were adopted, and assented to them or acquiesced in their enforcement.

If an amendment is procured in the superior court showing that we have misconceived the meaning of the case, and that the trial justice did not intend by the general verdict to find that the assured assented to or acquiesced in the amended by-laws, there should be a new trial; but as the case now stands, the order is

Exception overruled.

YOUNG, J., did not sit: the others concurred.