Payne v. Supreme Ruling of the Fraternal Mystic Circle

Fish, C. J.

(After stating the facts.) Under the record and the-briefs of counsel for the respective parties, the case is made to depend on whether the letters which passed between the parties, set forth in the foregoing statement of facts, show that the defendant committed a breach of its contract of insurance contained in the certificates it issued to the plaintiff. A careful reading of the letters will show, in our opinion, that the contract of insurance as exhibited by the certificates was rescinded or repudiated by the plaintiff, and not by the defendant. While it may be inferred'.from the letter written by the plaintiff to the defendant, on March 24, 1909, that the plaintiff was then engaged in the sale of liquors, and had been in such business from the time the original certificates were issued to him by the Modern Puritans, it is clear from the responsive letter written by the défendant, March 27, that the defendant did not understand that the plaintiff was then engaged in such business. In this letter the defendant informed the plaintiff that in a letter written by Thomas on March 10, who appears to have been the defendant’s agent, the plaintiff was then engaged “in the soft-drink business,” and not in the handling of liquors, and would therefore not be subject to the payment of the extra rate imposed on members of the association selling liquor. In this letter the defendant stated, in effect, that, whatever may have been the rights of the plaintiff in the past, it was willing “to let the past go,” but that if in the future the plaintiff should engage in the liquor business he would become subject to the payment of the extra premium rate for those engaged in such business. The plaintiff was therefore put upon notice that the defendant understood from its agent Thomas, who had notified the plaintiff to pay his March dues, that the plaintiff was not then engaged in the sale of liquor; and the plaintiff, instead of informing defendant that its understanding as to this matter was incorrect and that he was still engaged in the liquor business, interpreted the letter of the defendant to be a rescission of the contract of insurance certificates held by him, and demanded of the defendant repayment to him of all premiums he had paid, with interest thereon, and soon thereafter brought his suit for the same. The plaintiff misinterpreted,,we think, the letter of the defendant as being a rescission or repudiation of the certificates. This letter stated that as the plaintiff was not then engaged in the sale of liquor, he was not subject to the extra promium, but that in the event he should in the future engage in such business, then he would be subject to the extra premium. It does not appear where Thomas, the defendant’s ■ agent, was located, nor where the plaintiff did business as a wholesale liquor dealer, and we can not legally assume that he was engaged in such business in Augusta in 1909 in violation of the general prohibition law. From what lias been said, it follows that the court properly dismissed the petition on general demurrer.

Judgment affirmed.

Beck, J., absent. The other Justices concur.