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the original demise is thereby lengthened to cover the longest time named. The lease, and the agreement, therefore, must be construed together, and considered in their entirety as forming the contract between the parties. This, with an exception presently to be noticed, is not denied by the plaintiffs, as they aver in their bill that all the covenants and agreements to be kept by them have been performed. The exception is, the reservation of the right to cancel the lease of which the lessors, by a proper notice, having signified their intention to take advantage, this bill is brought for the purpose of enjoining them from enforcing a cancellation.

From the facts which are not in dispute it is manifest that the plaintiff, De Friest, made the improvements on the premises at a large expense, with the knowledge and consent of the defendants, and upon an oral understanding with them, that if this was done by him the lease should be extended for a further term of five years. During these negotiations, and in the oral agreement there was no reference whatever made to the right of cancellation, and from the testimony of the lessee, which is stated in his findings of fact by the presiding judge before whom the case was tried, to have been entitled to full credence, it is apparent not only that he expended his money in good faith relying upon the representations of the defendants, that if he did so they would permit him to occupy the premises for the entire term, but also that such expenditures would not have been made if he had understood that they still claimed the right to terminate his tenancy at their will. If the written agreement had merely prolonged the term, without further details, and the defendants then had attempted to enforce a cancellation, the plaintiffs would have been able to defeat a forfeiture by proof of the oral agreement, from which it could have been found that it was not within the contemplation of the parties to keep this condition alive, as its enforcement would defeat the object for which the extension was granted. Durkin v. Cobleigh, 156 Mass. 108, 109, 30 N. E. 474, 17 L. R. A. 270, 32 Am. St. Rep. 436. But where after preliminary verbal negotiations have taken place the parties finally put their contract in writing an independent contemporaneous oral agreement relating to the subject matter which is inconsistent with the terms of the instrument cannot be given effect to vary or modify its provisions. Thomas v. Barnes, 156 Mass. 581, 583, 31 N. E. 683. This principle, however, is not in conflict with another well settled rule upon which the plaintiffs rely, that for the purposes of interpretation, and application, of the terms of a contract evidence showing the subject matter with which the parties dealt, the object which they sought to accomplish, as shown by the pre

vary what has been reduced to writing, but to aid in its construction, and to make plain in what sense the parties used and understood the language they employed. Palmer v. Clark, 106 Mass. 373, 387; Keller v. Webb, 125 Mass. 88, 89, 28 Am. Rep. 209; Proctor v. Hartigan, 139 Mass. 554, 2 N. E. 99; Bassett v. Rogers, 162 Mass. 47, 51, 37 N. E. 772; Id., 165 Mass. 377, 43 N. E. 180; Alvord v. Cook, 174 Mass. 120, 122, 123, 54 N. E. 499; Lynn Safe Deposit & Trust Co. v. Andrews, 180 Mass. 527, 534, 62 N. E. 1061; Hebb v. Welsh, 185 Mass. 335, 70 N. E. 440. But this rule is inapplicable.

Upon recurrence to the agreement it purports in clear and comprehensive language to grant an extension of the demised term, subject to "all provisions, agreements, terms and conditions in said lease, *" and in this form it was prepared by the plaintiffs' attorney and submitted to, and signed by the defendants, and left in escrow with him until after the time had expired during which mechanic's lien might have attached, when it was delivered to the plaintiffs at the completion of the improvements. See Nickerson v. Massachusetts Title Ins. Co., 178 Mass. 308, 311, 59 N. E. 814. Neither upon the face of this instrument, if considered independently, nor when read in connection with the lease is there any ambiguity of expression any more than there is in the lease itself, concerning the matter in dispute. That according to the understanding of the lessee, when the term was extended, there should have been an exception inserted stating that all of the covenants and obligations of the lease should continue in force except the lessor's right of cancellation is not sufficient. Under the guise of construction by invoking the previous conduct and language of the parties the normal meaning of words cannot be explained away in equity any more than at law, even if by giving them their common signification it may re sult, as in the present case, in allowing one party to the contract to obtain an advantage which otherwise would be inequitable. Kelley v. Cunningham, 1 Allen, 473, 474; Violette v. Rice, 173 Mass. 82, 84, 53 N. E. 144, and cases cited. After receiving evidence of the attendant circumstances by which to determine if the written contract expressed the intention of the parties, it is then to be determined whether the part of the contract alleged to have been omitted is covered by the writing. If it is, parol evidence is inadmissible. Goode v. Riley, 153 Mass. 585, 28 N. E. 228; Benson v. Gray, 154 Mass. 391, 395, 28 N. E. 275, 13 L. R. A. 262; Reynolds v. Boston Rubber Co., 160 Mass. 240, 245, 35 N. E. 677; Menage v. Rosenthal, 175 Mass. 358, 56 N. E. 579; Boruszweski v. Middlesex Mutual Assurance Co., 186 Mass. 589, 72 N. E. 250. There is no suggestion that the execution and acceptance of the agreement by the plaintiffs was procured by

the fraud or misrepresentation of the defendants, neither is there evidence that since then in reliance either upon their conduct or representations the plaintiffs have been led or induced to change their position for the worse so that neither a waiver of this part of the contract, nor an estoppel which prevents its enforcement is shown. Stiff v. Ashton, 155 Mass. 130, 29 N. E. 203. Nor were they concluded by the negotiations before the written agreement was reached, upon the view advanced by the plaintiffs that this provision having thus either been waived or the defendants estopped, it had ceased to be operative, and therefore was not included, as the undisputed language of the agreement itself affirms this right. Kent v. Warner, 12 Allen, 561, 563: Batchelder v. Queen Ins. Co., 135 Mass. 449, 450; Metropolitan Coal Co. v. Boutell Transportation & Towing Co., 185 Mass. 391, 70 N. E. 421.

Under our construction of the agreement, as we have said, it operated to continue the leasehold estate for the full term of nine years from the date of the lease, subject, of course, to the essential covenants and stipulations, and the notice given to the lessee, that the defendants elected to take advantage of the right to cancel having been preceded by a tender of the amount required if cancellation took place after the first year and a half of the term had expired, had the effect of terminating the lessee's estate and interest in the premises. A majority of the court is of opinion the entry must be Decree affirmed.

(192 Mass. 326)


(Supreme Judicial Court of Massachusetts. Suffolk. June 20, 1906.)



Rev. Laws, c. 118, § 21, declares that no oral or written misrepresentation or warranty by the insured shall be deemed material, or defeat or avoid the policy, or prevent its attaching, unless such misrepresentation or warranty is made with actual intent to deceive, or unless the matter misrepresented or made a warranty increased the risk or loss. Held, that misrepresentations with reference to insured's physical history, occupation, and whether she had consulted and been treated by a physician, were ineffectual under such section to avoid a benefit certificate in a fraternal organization, unless such representations were made with actual intent to deceive and the subject misrepresented increased the risk.

[Ed. Note. For cases in point, see vol. 28, Cent. Dig. Insurance, § 1863.]

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cation for life insurance, insured will be presumed to have been cognizant of her physical history within the period to which the inquiries were confined, as well as whether she had consulted or been treated by a physician.


Where an applicant for a benefit certificate has suffered from a disease so grave that it is generally recognized as tending to shorten life, and fails to disclose the fact in answer to a question calling for such information, it may be ruled as a matter of law that the risk is thus increased, and the certificate is void; but where insured, in reply to a question calling for the fact, has not been informed of a disease which, although serious, may not have such tendency, whether the risk has been increased is for the jury.


In an action on a benefit certificate, whether the risk was increased by alleged false answers to questions in the application relating to the consultation of physicians or of treatment by them was for the jury.

[Ed. Note.-For cases in point, see vol. 28, Cent. Dig. Insurance, § 2009.]


Where a mutual benefit society accepted insured's application for membership and issued an insurance certificate to her, thereafter recognizing her as a member by receiving dues and assessments, it became bound on the face of the contract at her death to pay her beneficiary the benefit provided by the terms of the contract.


Where proceedings for the expulsion of a member of a mutual benefit society were taken without notice to her to appear and defend, as required by the by-laws, she could not be required to take an appeal from the expulsion order until notice of conviction and subsequent expulsion had been received.

[Ed. Note.-For cases in point, see vol. 28, Cent. Dig. Insurance, § 1835.]

8. SAME-NOTICE OF EXPULSION-Tender. A notice of expulsion of a member of a mutual benefit society and a tender of assessments, dues, etc., to the member's sister, who was not shown to have been authorized to act in her behalf, was inoperative to terminate the member's rights in the association.



Failure to comply with a by-law of a mutual benefit society, providing for forfeiture in case of a member's failure to pay assessments as required, operates to cancel the member's rights under his certificate to the same extent as a failure to comply with a similar clause in an insurance policy providing for payment of an annual premium.

[Ed. Note.-For cases in point, see vol. 28, Cent. Dig. Insurance, §§ 1895-1906.] 10. SAME-BURDEN OF PROOF.

In an action on a mutual benefit certificate, the burden of proving a forfeiture for nonpayment of assessments is on the defendant. [Ed. Note.-For cases in point, see vol. 28, Cent. Dig. Insurance, § 2001.]


Under Rev. Laws, c. 173, § 27, providing that an answer shall state clearly and precisely each substantive fact which is intended to be relied on in avoidance of the action, etc., failure of a member of a mutual benefit society to pay regular monthly assessments cannot be relied on as a ground of forfeiture in an action on the certificate, unless specially pleaded.

Exceptions from Superior Court, Suffolk County; William B. Stevens, Judge.

Action by Gladys J. Kidder against the Supreme Commandery of the United Order of the Golden Cross on a benefit certificate. In the superior court there was a verdict for plaintiff, and defendant brings exceptions. Overruled.

Coggan & Coggan and G. L. Dillaway, for plaintiff. W. H. Powers and H. H. Folsom, for defendant.

BRALEY, J. The questions presented by these exceptions may be taken up in the order in which. they appear in the record. Among the most important is the refusal to give five requests for rulings that as matter of law the answers of the insured in her application which forms a part of the contract having been untrue, and the representations being material, the certificate of insurance either never attached, or was voidable at the election of the defendant. Under St. 1894, p. 684, c. 522, § 21, as amended by St. 1895, p. 272, c. 271, now Rev. Laws, c. 118, § 21, which has been held to include fraternal beneficary corporations, unless such misrepresentations were made with an tual intent to deceive, and the subject misrepresented increased the risk they were deemed to be ineffectual either to prevent the policies from attaching, or to avoid them. Stocker v. Boston Mutual Life Association, 170 Mass. 224, 49 N. E. 116. By St. 1901, p. 349, c. 422, § 27, now Rev. Laws, c. 119, § 22, under which the certificate in suit was issued, while this provision was made inapplicable to such insurance the doctrine of the common law was not changed, for the original statute as amended was only declaratory as to misrepresentations, and did not formulate a new rule except as to warranties. Daniels v. Hudson River Fire Insurance Co., 12 Cush. 416, 425, 59 Am. Dec. 192; White v. Provident Savings Life Assurance Society of New York, 163 Mass. 108, 115, 39 N. E. 771, 27 L. R. A. 398. See Campbell v. New England Mutual Life Insurance Co., 98 Mass. 381, 401. When considering and answering the questions involving her past and present condition of bodily health, it may be said that the insured must be presumed to have been cognizant of her physical history within the period to which the inquiries were confined, and also to have known if she had consulted, or been treated by a physician. Yet if these answers were in the negative they are not made warranties, but being representations only they would not defeat the contract unless intentionally false, and material to the risk. Daniels v. Hudson River Fire Ins. Co., ubi supra. Their falsity must be found, if at all, in the extrinsic evidence, which substantially came from the physician whom she consulted, and subsequently employed, and the medical examiner of the defendant, who after an examination, approved

the application, and accepted her as an insurable risk. During the year preceding the application, the insured consulted a physician, and also is shown to have received medical advice and treatment for slight ailments in connection with her general health, the condition of which had caused her being confined to her bed, for a few days, but whether these ills should be deemed occasional, or classed as protracted in character depended upon inferences to be drawn from the evidence. In degree their difference is apparently so marked that the jury would be justified in finding that the applicant truthfully declared, she had not suffered from any prolonged sickness, and the representations that her health was perfect, and that no material facts bearing upon the subject had been suppressed could be found to rest upon her experience of a complete recovery from the attacks of temporary sickness, and also in her reliance upon competent medical opinion that she was not suffering from any organic disease. If from the testimony of the family physician it could be said that she formerly had believed a serious physical trouble existed, yet it also appears that from his diagnosis this belief was groundless, and that she accepted and acted upon his opinion. Besides this question was framed to cover actual, not imaginary diseases the supposed presence of which until the sufferer is disabused of such belief by competent medical advice is not uncommon. Where, however, an applicant has suffered from a disease so grave in its nature that generally it is recognized as having a tendency to shorten life, and fails to disclose the fact in answer to a question which calls for such information, it may be ruled as matter of law that as the risk is thus increased the policy is void. Brown v. Greenfield Life Association, 172 Mass. 498, 53 N. E. 129; Rainger v. Boston Mutual Life Association, 167 Mass. 109, 44 N. E. 1088. So a misstatement as to age if there is a material increase of years subseqently shown has the same effect. Dolan v. Mutual Reserve Fund Life Association, 173 Mass. 197, 200, 53 N. E. 398. But where the insurer in reply to a question calling for the fact has not been informed of a disease which although serious may not have this tendency, it is for the jury to say if the risk has been increased. Hogan 'v. Metropolitan Life Ins. Co., 164 Mass. 448, 41 N. E. 663; Levie v. Metropolitan Life Ins. Co., 163 Mass. 117, 39 N. E. 792; White v. Provident Savings Life Association Society, ubi supra. Within the last category also falls the answers to the questions relating to the consulting of physicians, or of treatment by them. The obtaining of medical advice or treatment under some circumstances may be indicative of such impairment of health as to make the patient an undesirable risk, or such acts may be only for the object of obtaining relief for common though

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not incurable complaints which do not result in any permanent physical derangement. It was for the jury to find under suitable instructions whether the incorrect answers to these questions were material, or intentionally false. White v. Provident Savings Life Association Society, ubi supra.

There was a further inquiry in reference to her occupation which seems to have been that of a housewife, and here it also could have been determined that in so far as such a question was applicable her usual calling had not been interrupted in the sense that by reason of long continued or severe sickness she had been rendered incapable of supervision of the household, or incapacitated from resuming her ordinary labor. These requests, therefore, were rightly refused, and the instructions given fully and accurately stated at law.

The second exception is to a refusal to rule that if during the life of the decedent the defendant rescinded the contract, and expelled or disconnected her from the order, it became her duty if she desired to continue a member to exhaust by an appeal the exclusive remedies provided by its constitution and general laws for reinstatement. By accepting the application, issuing the insurance certificate, and recognizing her as a member by receiving dues and assessments, the defendant became bound on the face of the contract at her death to pay to the plaintiff as beneficiary the benefit provided by its terms. Com. v. Wetherbee, 105 Mass. 149, 160; Wuerfler v. Trustees of Grand Grove of Historical Order of Druids, 116 Wis. 19, 92 N. W. 433, 96 Am. St. Rep. 940. While this contract contained no provision for cancellation at the option of the defendant either with or without notice to the insured, it was provided by these laws that any member who gained admission by reason of any false statements contained in the application should on conviction be expelled, but before such expulsion could be ordered the accused was entitled to be informed of the charges made against him, and to be heard in his defense. Without any previous notice giving such an opportunity, and in obedience to an order from the principal officer of the defendant, who was clothed with authority to act in its behalf, the subordinate commandery voted to return the amount previously paid for dues and assessments, and to notify the decedent that having gained admission through misrepresentation she had been disconnected. But no tender was ever made, or notice communicated because at the time the vote was passed, and until death she was mortally sick, and substantially unconscious. If the action taken was irregular a member, under the defendant's laws would not be called upon to appeal until notice of conviction and subsequent expulsion had been received. By reason also of this condition the attempt to rescind

was not perfected, and the vote of disconnection, if treated as an act of rescission, and the notice given and tender made to her sister, but who is not shown to have been authorized to act in her behalf, was inoperative for this purpose. Pollock, Cont. (7th Ed.) 580. See Howland v. Centennial Fire Ins. Co., 121 Mass. 499. It is unnecessary to express an opinion upon the validity of these proceedings, for if without granting an opportunity of being heard before membership was declared forfeited, they could be upheld as valid until suspended by an appeal, no effective notice of disconnection having been given there was no occasion for resorting to this remedy. Neither is any provision found that an appeal could be prosecuted in her behalf by a stranger, and this ruling also was properly refused. Gray v. Christian Society, 137 Mass. 329, 331, 50 Am. Rep. 310; Karcher v. Supreme Lodge Knights of Honor, 137 Mass. 363, 370.

The third exception is to a refusal to grant a request, that a verdict be ordered in the defendant's favor because by the self executing action of one of its by-laws a failure by the decedent to pay or tender an assessment that had accrued during her sickness operated to dissolve her membership, and forfeited the insurance. While her complete physical and mental disability would not relieve her from an exact performance of this condition, a by-law embodying this specific purpose, which by reference is made a part of the certificate, holds a place in this form of insurance similar to a clause of forfeiture for a failure to pay the annual premium, after the first has been paid, as provided in contracts of regular life insur


Wareham Bank v. Burt, 5 Allen, 113, 116; Thompson v. Insurance Co., 104 U. S. 252, 259, 26 L. Ed. 765; Carpenter v. Centennial Life Ins. Ass'n, 68 Iowa, 453, 27 N. W. 456, 56 Am. Rep. 855; Yoe v. Masonic Mutual Bene. Ass'n of Baltimore, 63 Md. 86, 93; Com. v. Wetherbee, ubi supra; McAllister v. New England Mutual Life Ins. Co., 101 Mass. 538, 561, 3 Am. Rep. 404. In either, such a provision is inserted for the benefit of the insurer upon whom consequently rests the burden of proving that by reason of noncompliance a forfeiture follows, either of the certificate, or of the policy. Kingsley v. New England Mutual Fire Ins. Co., 8 Cush. 393, 404; Hodsdon v. Guardian Life Ins. Co., 97 Mass. 144, 93 Am. Dec. 73; Rice v. New England Mutual Aid Society, 146 Mass. 248, 252, 15 N. E. 624; Lyon v. Royal Society of Good Fellows, 153 Mass. 83, 84, 26 N. E. 236; Waterworth v. American Order of Druids, 164 Mass. 574, 42 N. E. 106; Campbell v. Supreme Lodge Knights of Pythias of the World, 168 Mass. 397, 400, 47 N. E. 109; Petherich v. Order of Amaranth, 114 Mich. 420, 423, 72 N. W. 262; Ferguson v. Union Mutual Life Ins. Co., 187 Mass. 8, 72 N. E. 358; Harris v. North American Insurance Co., 190 Mass.

361, 369, 77 N. E. 493. But if under the present certificate lapse of membership by a failure to pay the regular monthly assessments works a forfeiture of the contract, this defense is not open to the defendant as it has not been pleaded, and it cannot be raised under an answer which as to this issue contains only a general denial. Rev. Laws, c. 173, § 27; Mulry v. Mohawk Valley Ins. Co., 5 Gray, 541, 543, 66 Am. Dec. 380; Orrell v. Hampden Fire Ins. Co., 13 Gray, 431, 434; Thayer v. Connor, 5 Allen, 25; Hodsdon v. Guardian Life Ins. Co., ubi supra; Pitt v. Berkshire Life Ins. Co., 100 Mass. 500, 503; Perley v. Perley, 144 Mass. 104, 107, 10 N. E. 726; Freeman v. Travellers' Ins. Co., 144 Mass. 572, 578, 12 N. E. 372; Shea v. Mass. Benefit Association, 160 Mass. 289, 35 N. E. 855, 39 Am. St. Rep. 475. It, therefore, becomes unnecessary to determine whether after the defendant had unreservedly declared not only that her membership was terminated, and the contract repudiated, but ordered the subordinate commandery, which was bound to obey its commands, not to receive dues or assessments, either from the insured, or from any person acting in her behalf, further tender of performance within the time elapsing between the vote and her death had been waived, or the defendant had become estopped from making such defense.

The exception to the refusal to give this ruling cannot be sustained, and the rulings given, that upon this issue there was no question of fact for the jury to determine, as they were only to decide if false representation had been made, were correct. Exceptions overruled.

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Where a joint-stock company with transferable shares is organized under an agreement that the death of a member shall not work a dissolution and that the property shall be held under a declaration of trust by certain stockholders, the form of the association being intended to give the partnership the attributes of a corporation without its form or any change in the liability for firm debts, the right to contribution will be ascertained according to the shares held by each member, and the death of a partner will not require a division of the assets, but will entitle his legatees or distributees to succeed to his shares.

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A shareholder in a joint-stock company with transferable shares sold stock to a person entering the employment of the firm, under a contract that when the employment ceased the seller would repurchase the shares at their par value, plus the value of accrued dividends. After the death of the seller the employé notified the executor of the seller that he elected to terminate the employment on a certain date, and demanded a settlement as of that date. The executor arranged for a settlement by sale of the firm property. Held, that the employé could not be permitted to afterwards select a later date for settlement.


When the shares of the employé were repurchased by the executor, pursuant to the contract, all right to accrued profits passed to the executor, and the employé could not thereafter maintain a bill for an accounting and distribution of the profits earned during the time he held the shares.


Where a stockholder in and employé of a joint-stock company continued after he had elected to terminate his service under the contract of employment to render valuable services to the firm, with knowledge and consent of the managing partner, the employé was entitled, independently of any contract, to recover the reasonable value of his services.

[Ed. Note. For cases in point, see vol. 50, Cent. Dig. Work and Labor, §§ 3, 4.]

8. EQUITY-REFERENCE-RECOMMITTING CASE. A motion to recommit a case to a master and reopen it for further testimony should be addressed to the court, and its denial by the master is not a matter of exception.

[Ed. Note. For cases in point, see vol. 19, Cent. Dig. Equity, § 926.]

Appeals from Superior Court, Suffolk County; Jabez Fox, Judge.

Two separate suits by Fred J. Taber against Charles H. Breck as executor of the will of Luther Adams, and another. The first suit was for specific performance of a contract between defendant's testator and plaintiff, by which testator agreed to sell to defendant certain shares of stock in a jointstock company, and at the termination of plaintiff's employment by the company to repurchase the stock at its par value, plus the value of all unpaid dividends accrued, but not declared. The second suit was for an accounting and distribution of the profits of the company. From decrees granting a limited recommittal to the master and overruling

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