Holczer v. Independent Brass City Lodge, Inc. , 104 Conn. 539 ( 1926 )

We first give attention to that portion of the appeal which relates to the refusal of the trial court to correct the finding by adding thereto certain paragraphs of the defendant's draft-finding. The substance of the first of these, paragraph five, is sufficiently embodied in various paragraphs of the finding. Paragraph six is unsupported by the evidence. As to paragraph eight, reference in a meeting of the defendant organization to the plaintiff's wife becoming a member is set forth in paragraph nine of the finding in a manner which, upon the evidence, is not open to attack; the substance of the provisions of the by-laws as to membership is contained in paragraph thirteen of the finding so far as could be material to the court's conclusions; the remaining subject-matter of the paragraph is not undisputed. Each of the remaining paragraphs in question either consists of, or contains, matter as to which the evidence was conflicting, or which, at most, may not be regarded as admitted or undisputed. It is not the duty of the trial court, or of this court, to cull out such few isolated portions as might be found to be undisputed. Howd v. MacGregor,102 Conn. 331, 335, 128 A. 518. If we did so, the ultimate conclusions would not be affected thereby.

The subordinate facts in the finding support the essential conclusions of the trial court and the judgment rendered. The defendant society entered and carried the name of Mrs. Holczer upon its books, as a member, and collected and received dues and assessments on her account from 1917 until her death, July 1st, 1921. In April, 1920, the plaintiff, in a letter to the financial secretary of the society, who was charged with the duty of receiving the dues of all members and had full access to all the records determinative of membership, raised the question as to whether or not his wife was, in fact, a member. The defendant was thereby put upon inquiry, but the fact of her membership was confirmed by the defendant through its financial secretary by thereafter continuing to demand and accept her dues. The society is charged with knowledge of the contents of its own records and the knowledge of its officers having a duty and authority to act in the matter is imputed to it. The defendant had implied knowledge of the manner in which the decedent was enrolled as a member, or at least that she had been enrolled without formal application, examination, and vote, but continued to treat her membership as in full force and effect. It thereby, in the absence of fraud on her part or of the plaintiff, should be held to have waived such defects as existed in her qualifications for membership and in the manner of her admission, and is precluded from now taking advantage of those defects in order to avoid liability.Steuernagel v. Supreme Council of R. A., 234 N.Y. 251,137 N.E. 320; Modern Woodmen of America v.Breckinridge, 75 Kan. 373, 89 P. 661, 10 L.R.A. (N.S.) 136; Henry v. North American Union, 222 Ill. App. 279,286; Thornburg v. Farmers Life Asso.,122 Iowa 260, 98 N.W. 105; Modern Woodmen ofAmerica v. Lane, 62 Neb. 89, 86 N.W. 943; Mee v.Bankers Life Asso., 69 Minn. 210, 72 N.W. 74; SupremeLodge K. of H. v. Davis, 26 Colo. 252,58 P. 595; 7 Corpus Juris, 1096; 29 Cyc. 186, 187.

Such effect as might be claimed from knowledge of the plaintiff, or the decedent, of the conditions of membership imposed by the by-laws, is obviated by the finding that no by-laws had been adopted when the plaintiff and his wife were enrolled as members and none were thereafter communicated to either of them.

The appellant also contends that, the plaintiff's claim having been presented to and rejected by the defendant society, that decision is final and he has no remedy at law. The extent of the rule relied on is that the procedure, within the society, which is prescribed by its by-laws must be resorted to and exhausted before recourse is had to the courts. McGuinness v.Court Elm City, F. of A., 78 Conn. 43, 60 A. 1023;Gardner v. East Rock Lodge, 96 Conn. 198,113 A. 308. We find in the record no by-law regulating prosecution of claims in the defendant society and so have no basis for considering this contention.

There is no error.

In this opinion the other judges concurred.