Exceptions from district court, Providence county.

Action by Ellen M. Thackeray against William Eldigan. A plea of abatement was sustained, and the writ was quashed, and plaintiff brings exceptions. Sustained.

F. P. Owen, for plaintiff. John N. Butman, for defendant.

TILLINGHAST, J. This case is before us on exceptions to the rulings of the district court of the Eleventh judicial district. The action is trespass on the case for waste. The defendant pleaded in abatement, setting up, in substance, as we understand the plea, that the action should have been an action of waste under Gen. Laws R. I. c. 268, instead of an action on the case for waste. The court sustained the plea, and quashed the writ, to which ruling the plaintiff duly excepted. We think the ruling was erroneous. Case is the proper common-law remedy for injury to the reversion. Bacon v. Bullard, 20 R. I. 404, 39 Atl. 751; 1 Washb. Real Prop. (5th Ed.) 159, 160; Wait, Act. & Def. 251, 252. The statutory remedy for waste provided by Gen. Laws R. I. c. 268, does not take away the remedy at common law. It is to be regarded as cumulative, and not exclusive. 7 Lawson, Rights, Rem. & Prac. § 3777, and cases cited in note 5; Fisher v. Railroad Co., 12 R. I. 287. See, also, Coggeshall v. Groves, 16 R. I. 18, 11 Atl. 296. If the statute had created a new right, and at the same time given a remedy, such remedy would probably have been exclusive. Inman v. Tripp, 11 R. I. 520; Smith v. Tripp, 14 R. I. 112; Colt v. Commercial Co., 20 R. I. 323, 38 Atl. 1056. But, as the statutory remedy is merely cumulative, the plaintiff had his election as to which action he would bring. Stetson v. Day, 51 Me. 434. Moreover, it is to be observed that our statute of waste gives a remedy in the affirmative, without any negative, expressed or implied, for a matter which was actionable at common law, as aforesaid; and in such cases the common-law remedy is not taken away. Crittenden v. Wilson, 5 Cow. 165. Exceptions sustained, and case remitted to said district court for further proceedings.

NEWTON v. NORTHERN MUT. RELIEF ASS'N.

(Supreme Court of Rhode Island. Nov. 15, 1899.)

BENEFICIAL ASSOCIATIONS-DOUBLE ASSESSMENTS.

1. The laws of a beneficial association are a part of the contract made by a member accepting a benefit certificate issued by it.

2. A law of a beneficial association provided that, if the amount received from the last assessment paid prior to the death of a member should be less than the sum for which his certificate was issued, the beneficiary should be entitled only to the amount of said assessment. Another law provided that, where the amount of one assessment was not sufficient to pay all the

claims, a double assessment might be made. Held not to authorize a double assessment for one death.

Exceptions from common pleas division. Action by Martha L. Newton against the Northern Mutual Relief Association. To a judgment for plaintiff, defendant excepts. Modified.

Wm. P. Sheffield, Jr., for plaintiff. Robert M. Franklin, for defendant.

STINESS, J. The plaintiff sues upon a benefit certificate for the sum of $2,000, claiming that it is a policy of insurance for that amount. The certificate recites that Edward Newton, the insured, a member of Newport Associates, No. 4, "is entitled to all the rights and privileges of membership in said Newport Associates, and to participate in the benefit fund of the Northern Mutual Relief Association, to the amount of $2,000, which sum shall at his death be paid to his wife, Martha L. Newton." The conditions which follow require that the statements of his application shall be a part of the contract, that the use of spirituous or malt liquors as a beverage shall annul the contract, and that he shall comply with the rules of the order then or thereafter in force. The plaintiff relies upon the promise in the certificate to pay the sum of $2,000, while the defendant claims that the sum named is only a maximum of benefit, to denote the class of which Edward Newton was a member, and to fix the rate of assessment which he should pay, and which should be collected at his death, and that the exact amount to be paid is to be determined by the laws of the order, not exceeding that sum. The general laws of the order provide (chapter 1, § 2) as follows: "The amount to be paid from the benefit fund to the beneficiary named in the benefit certificate of a member, at the death of such member, shall be at the following rates, viz.: For a member of the first rate, two thousand dollars; for a member of the second rate, fifteen hundred dollars," etc.; "* * but, if the amount received from the last assessment paid prior to said death is less than two thousand dollars, the beneficiary of a member of the first rate shall not receive more than the amount of said assessment," etc. At the trial it appeared that the money received from the last assessment before the death of Edward Newton was only $978.46, of which the plaintiff has received $900. It was ruled, pro forma, that the plaintiff was entitled to $1,100, remaining unpaid, verdict was given accordingly, and the defendant excepted to the ruling.

*

The question is whether the plaintiff is entitled to the full sum of $2,000, or whether reference can be made to the laws to determine the amount due. If the certificate stood alone, the ruling would be correct. But it is evident that this was not an absolute contract for the payment of $2,000, as in an ordinary policy of insurance, but the agreement of a benefit association, in which the money

due at the death of a member is to be paid by a special assessment. The laws of the order therefore form a necessary part of the contract. They are referred to in it. By the certificate the insured "is entitled to the rights and privileges of membership," so that it becomes necessary to inquire what those rights and privileges are. The insured is also required to comply with the laws, rules, and requirements of the order, from which it appears that, on the death of a member, notice is to be given and an assessment collected. It is the now familiar form of benefit societies, in which the only fund for the payment of death benefits is received by a special collection, which the member must be taken to understand as the measure of the contract. His membership is based upon this assessment, and not upon a fixed premium, as in common life insurance. As a member, he must know, from the scheme of organization, that the society has no capital from which to pay benefits, other than the periodic taxes, which are made only when a death occurs. He must know that, if there are not members enough in his class to make up $2,000 on an assessment for his death, the full sum cannot be paid. This form of insurance is now so common that a court is bound to take notice of its character and effect, and especially to presume that members of a society organized for this purpose know that their certificates are not absolute promises for the amount named, but conditional upon the amount received from assessments. And this is just. For, if the number of members is smaller than that required to make up the full sum, each member pays for a proportionally smaller number of deaths. True, a member may have paid assessments on a full class for a long time, and then the number of members may fall off; but this is one of the chances in this form of insurance. Indeed, it is not strictly insurance. It is properly styled a "benefit fund." As such a fund, it covered sickness as well as death; providing for weekly payments, which should be deducted from the amount due on the decease of the member. Hence the certificate was not for an absolute sum at death, but for what might then be due. This must have been known to Edward Newton, not merely from the general scheme of the society, but also from the terms of his application, which directs the payment at his decease of, not the full sum, but "all benefits to which I may be entitled"; implying that he did not understand the contract to be for the full sum, but for such sum as would be due or be realized under the terms of the laws and rules of the order. It is so plain that a member of such a society takes his certificate subject to the laws of the society, that an extended review of cases on this subject is needless. We will refer to two. In Supreme Lodge v. Knight, 117 Ind. 489, 20 N. E. 479, 3 L. R. A. 409, Elliott, C. J., says: "The provisions of the established by-laws of an association such as that with

which the assured united are elements of the contract of insurance. They are factors that cannot be disregarded. That they have this effect all who become members of the association must know. A person who enters an association must acquaint himself with its laws, for they contribute to the admeasurement of his rights, his duties, and his liabilities." This rule was applied in this case to a change in by-laws which made a new class of beneficiaries, thus cutting down the amount to be realized by assessment on the certificate in suit. In French v. Society (Sup.) 51 N. Y. Supp. 675, McAdam, J., said: "The certificate also refers to the laws, rules, and usages of the society; so that these, with the application, evidently became a part of the contract." In that case a by-law provided that when an assessment, after deducting onethird for the reserve fund, should be less than $1,000, the amount paid on a certificate should not exceed two-thirds the amount received on the assessment; and it was held that the bylaw determined the amount due upon the certificate. In Supreme Council v. Morrison, 16 R. I. 468, 17 Atl. 57, a by-law requiring the assent of a beneficiary to a change was repealed. A change of beneficiary made after the repeal was held to be valid, as it was in conformity to the by-laws then in force. While that case is distinguishable from this one, the same principle applies to both,-that the contract is subject to the by-laws.

The plaintiff calls attention to the general laws of the order (chapter 1, § 5), which provide that when the benefit fund is less than $2,000 an assessment shall be ordered, "and, if the amount of one assessment is not sufficient to pay all claims reported at the date of the call, a double assessment may be made, but not over two assessments shall be called during any one month." The argument is that this provides for a double assessment to make up the $2,000. We do not think that this is so. The laws proceed upon the plan that $2,000 shall be kept in the treasury to meet a death claim, and when it is paid out an assessment is made for the money with which to meet the next claim. Under section 5, if the full amount is not in hand, an assessment is ordered; the subordinate association is notified "to forward to the general treasurer the previous assessment," and to collect another. This clearly shows that the purpose is to call in what is unpaid on the previous assessment, and to make another. It is not to add the last assessment to the former, for that would not only be contrary to section 2, but it would also make a double assessment for a single death, which would conflict with the whole scheme of the association and its laws. The two assessments in a single month are evidently applicable to cases of two or more deaths in one month.

If the laws of the defendant society form a part of the contract, as we think they do, it follows that the plaintiff was only entitled to recover the balance due on the last assess

ment, $78.46, and the verdict should have been for that amount. Case remitted to the common pleas division, with direction to enter judgment for the plaintiff accordingly.

MALONEY v. COOK.

(Supreme Court of Rhode Island. Nov. 11, 1899.)

MUNICIPAL CORPORATIONS-ACTION FOR PERSONAL INJURIES-NOTICE.

1. Gen. Laws R. I. c. 36, § 16, provides, as a condition precedent to an action against a town for injuries from defective highways, that the person injured shall, within 60 days, give notice of the time, place, and cause of the injury. Held, that a notice that plaintiff was injured "while walking on the southerly side" of a street a quarter of a mile long, and that the cause of the injury was "the defective condition of the sidewalk," does not sufficiently designate either the place of the injury nor the defect which caused it.

2. Defects in a notice required as a condition precedent to an action against a town for injuries caused by defective highways cannot be cured after the action is brought.

Action by Mary Maloney against Samuel P. Cook. Petition by plaintiff for new trial after nonsuit. Denied.

McFee & Greene and Dennis J. Holland, for plaintiff. Erwin J. Franee, for defendant.

TILLINGHAST, J. The only question presented for decision in this case is as to the sufficiency of the notice which the plaintiff gave to the city council of Woonsocket prior to the commencement of her action. Said notice was as follows: "To the Honorable the City Council of the City of Woonsocket: Respectfully represents the undersigned that on the 2d day of February, A. D. 1898, while walking on the southerly side of Church street, in said city, she fell, and broke her right arm; that the cause of said fall was the defective condition of said sidewalk, which said sidewalk is a part of a public highway in said Woonsocket; wherefore the undersigned presents a claim against said city of Woonsocket in the sum of three thousand dollars for injuries sustained as above stated. March 4, 1898. Mary Maloney, by Mary Maloney, by Her Attorneys, McFee & Greene." Gen. Laws R. I. c. 36, which gives an action against towns for injuries sustained by reason of defective highways, provides, in section 16, as a condition precedent to the bringing of such action, that notice shall be given as follows: "A person so injured or damaged shall, within sixty days thereafter, give to the town by law obliged to keep such highway, causeway, or bridge in repair, notice of the time, place, and cause of such injury or damage." Section 18 requires said notice to be in writing, and signed by the person injured or damaged, or by some one in his behalf, and to be presented to the town council of the town, or to the city council of the city. Seamons v. Fitts, 21 R. I., 42 Atl. 863. In Burdick v. Richmond, 16 R. I. 502, 17 Atl. 917, this court

passed upon the sufficiency of a notice required by Pub. St. R. I. c. 34, § 12, in so far as said notice related to the amount of the plaintiff's claim for damages, and held it to be sufficient. In speaking of that statute, the court said: "The manifest purpose of the statute is to enable the town council to investigate the claim, and to afford them an opportunity to settle it without subjecting the town to the expense of a suit. If, therefore, the facts upon which the claim arises are set forth in the notice with sufficient fullness and particularity to enable the town council to make such investigation, the purpose of the statute is answered. The town council, being possessed of a knowledge of the facts, can form a judgment as to the amount of the damages as well as the claimant, and can then either pay or tender to him that amount within forty days after the presentment of the claim specified in the statute before suit can be brought." The statute now before us for construction was enacted since said decision was rendered, and clearly requires greater particularity of statement in the notice. than was required by the statute then under consideration. That statute was general, relating to claims or demands against towns for "any matter, cause, or thing whatsoever," while the one now before us is limited to claims for injuries or damages received by reason of defective highways, and prescribes specifically what the notice shall contain. In the first place, it requires that the time of receiving the injury or damage shall be given; secondly, the place thereof; and, thirdly, the cause. This particular information was evidently thought necessary by the general assembly, in passing the statute, in order to enable the town or city council to make an independent investigation of the claim, and determine whether any cause of action existed. And, as said by the court in Noonan v. Lawrence, 130 Mass. 161: "The notice must, to be sufficient, be so reasonably specific as to time, place, and cause as to be of substantial assistance to the proper authorities in investigating the question of their liability."

Is the notice in question a substantial compliance with the statute above quoted? We think that in two important particulars, namely, as to place and cause, it is not. It states that, "while walking on the southerly side of Church street, in said city, she fell," etc. The evidence shows that Church street is upwards of a quarter of a mile in length, and that the houses on the southerly side thereof are built close together, and are numbered from 1 to 114. Such a vague and general description of the place where the accident happened failed to give the city council such information as would enable them to make an independent and intelligent investigation of the locality, and was clearly not so specific as the statute requires. And, moreover, the proof shows that the place where the accident happened could easily have been described with almost exact definiteness. See Cronin v. City of Boston,

135 Mass., on page 112. Our statute aforesaid, prescribing what the notice shall contain, is almost identical with the Massachusetts statute of 1877 (chapter 234, § 3), under which it has repeatedly been held that a notice, in order to be of any validity, must describe the particular locality, as well as the cause of the accident, with reasonable certainty. Post v. Foxborough, 131 Mass. 202; Noonan v. Lawrence, supra; Shallow v. Salem, 136 Mass. 136. To the same effect are the cases in Maine and Vermont. See Rogers v. Shirley, 74 Me. 144; Law v. Fairfield, 46 Vt. 425; Butts v. Stowe, 53 Vt. 600. See, also, Carr v. Ashland, 62 N. H. 665, and Currier v. City of Concord (N. H.) 44 Atl. 386. Nothing

which is contained in the notice before us would enable the city council to determine the locality of the accident with any reasonable degree of certainty, and hence it was insufficient in this particular.

The notice was also clearly insufficient as to cause. It simply states "that the cause of said fall was the defective condition of said sidewalk." This is even more general than the statement as to place, for it gives absolutely no information as to the nature of the defect. The defective condition of said sidewalk might refer to any one of the numerous historic defects to be found in the reports. As said by the court in Noonan v. Lawrence, supra, in speaking of a similar notice:

is equally consistent with an excavation in the way, an obstruction upon the way, an original malconstruction of the way, a worn, uneven, and irregular condition of the surface of the earth, an accumulation of snow or ice or both, or any of the many varieties or defects which may exist in a way." Such a notice could be of no assistance in enabling the city council of the defendant city to investigate the cause of the alleged injury. To say that an accident was caused by the defective condition of a given highway, or of a sidewalk thereon, is not notice of the cause of the injury. It is simply stating the general and statutory ground upon which a city or town in every case is liable for injuries sustained upon a highway; but it states no cause for the particular injury complained of. In Dalton v. Salem, 131 Mass. 551, a notice in the words, "The cause was a defective construction or condition of the street, sidewalk, and edgestones at the place named," was held not sufficient notice of a defect which consisted of a small crevice between two curbstones. "The object of the statute," said the court in Bailey v. Inhabitants of Everett, 132 Mass. 442, "in requiring notice to be given of the cause of the injury, is to direct the attention of the town officers to the particular thing or condition which caused the injury, so that they can see whether it is a defect or not." We do not wish to be understood, by what we have said, as holding that a notice given under the statute ought to be construed with technical strictness, but that it is sufficient if it gives to the officers of the town or city "in

formation with substantial certainty as to the time and place of the injury, and as to the character and nature of the defect which caused it, so as to aid them in investigating the question of liability of the town." Spellman v. Inhabitants of Chicopee, 131 Mass. 445. See, also, Lilly v. Town of Woodstock, 59 Conn. 219, at page 221, 22 Atl. 40; Stedman v. City of Rome (Sup.) 34 N. Y. Supp. 737; Werner v. City of Rochester, 77 Hun, 35, 28 N. Y. Supp. 226.

But plaintiff's counsel argues that, as the testimony produced at the trial of the case shows that there was no other defect along the entire street but the defect at the place where the accident happened, and that before the expiration of 60 days from the time of the injury plaintiff's counsel appeared before the committee on claims, and stated to them particularly the place where the accident happened, and the exact cause of the accident, the city council was fully informed in the premises, and was not misled. If the defect in the notice required by the statute could be cured in this way, we agree that, under the evidence, it would now be sufficient. But, as the giving of the notice provided for is a condition precedent to the beginning of the action, for the court to say that it can be amended in this way would be to render the statute of no avail. We feel compelled to hold, therefore, that the notice was insufficient, and that the nonsuit was rightly granted. Petition for new trial denied, and case remitted to the common pleas division with direction to enter judgment for the defendant

WASON v. BURNHAM. (Supreme Court of New Hampshire. Hillsboro. July 31, 1896.)

EVIDENCE-RES GESTÆ—APPEAL AND ERROR. 1. In an action by decedent's accountant to recover for services against the estate, evidence of a conversation between plaintiff and the executor, while endeavoring to settle plaintiff's account, in which plaintiff told the executor what he had done, and that he should look to the latter for payment for his services, whereupon executor stated that plaintiff ought to be paid, was admissible as res gestæ.

2. Where a witness inadvertently answered a question which he was told not to answer on objection made, and the trial court found such answer did not affect the result of the trial, the verdict will not be set aside.

Exceptions from Hillsboro county.

Claim by Charles E. Wason against Henry E. Burnham, executor, etc., against the estate of William Perkins, deceased. From a verdict in favor of claimant, defendant brings exceptions. Overruled.

The plaintiff kept the books and collected the accounts of a coal firm, at the request of Perkins. After Perkins' death, the defendant, executor of his will, called upon the plaintiff, and requested a settlement. Subject to exception, the plaintiff testified that he then paid to the defendant the balance due the es

tate, told him what he had done, and said he should look to him as executor for pay for his services. The defendant agreed that the plaintiff ought to be paid, and said he would find out what could be done. Afterwards he informed the plaintiff that the parties interested were not willing anything should be paid him, and that his bill should be presented to the commissioner. The plaintiff was asked if he presented any evidence before the commissioner in support of his claim. Objection was made, and he was told not to answer, but, not understanding, inadvertently replied, "No, sir," and the defendant excepted. The court excluded the question and answer, told the jury not to regard the evidence, and instructed them that their verdict was to be returned upon the evidence presented to them, independently of what had been done elsewhere. The court found that the result of the trial was not affected by the evidence excepted to.

David A. Taggart and Elijah M. Topliff, for plaintiff. Burnham, Brown & Warren, for defendant.

CLARK, J. After his appointment as executor of the will of William Perkins, the defendant called upon the plaintiff, and requested a settlement and an examination of his accounts. The defendant excepted to the admission of evidence as to the conversation between the parties at that time. The conversation was between the plaintiff and defendant, who are parties of record, it was a part of the res gestæ, and the defendant was discharging his duties as executor of Perkins' will in endeavoring to effect a settlement of the plaintiff's account. Under these circumstances, the defendant's admission of the justice of the plaintiff's claim might properly be shown in evidence. Tenney v. Evans, 14 N. H. 343. The exception to the question and answer excluded by the court is groundless. The verdict should not be set aside because of an inadvertent answer of a witness, which the court found did not affect the result of the trial. Exceptions overruled.

WALLACE, J., did not sit. The others concurred.

SHATTUCK et al. v. ROBBINS. (Supreme Court of New Hampshire. Hillsboro. July 31, 1896.)

SUBSCRIPTION TO STOCK OF CORPORATION— FALSE REPRESENTATIONS MADE BY SOLICITOR OF SUBSCRIPTIONS-EXPRESSION OF OPINION-STATEMENTS MADE AT TIME OF SUBSCRIPTION - ADMISSIBILITY TO VARY CONTRACT-ACTION ON SUBSCRIPTION.

1. Representations by the person soliciting subscriptions to the stock of a certain press association, that they had arranged to buy the Nashua Telegraph, and were going to have the Associated Press news, are merely expressions of opinion, or of an existing intention to do a certain act, which was liable to be changed at any time by the act of the majority of the stockholders,

and, when made in good faith, do not invalidate subscriptions induced thereby.

2. Statements of a person soliciting subscriptions to stock of a corporation, made previous to or contemporaneous with the contract of subscription, are inadmissible to vary or control the written contract.

3. Where one, by the terms of his subscription to stock of a corporation, agrees to pay the amount at specified times, a suit can be maintained on the contract of subscription, though no assessments have been collected by sale of the stock subscribed for.

Assumpsit by Joseph Shattuck and others against Isaiah Robbins to recover the amount of defendant's subscription to the stock of the New Hampshire Press Association. Facts found by the court. Judgment for plaintiffs.

The defendant subscribed for 10 shares of the capital stock of the association at the par value of $50 per share, amounting to $500, which sum he agreed to pay in quarterly payments at specified times. The subscriptions were solicited by one Towner. When the defendant subscribed for his stock, Towner talked about buying the Nashua Telegraph, said they had arranged to buy it, and were going to have the Associated Press news. The defendant was induced by this statement to make his subscription. The corporation, when afterwards organized, did not buy the Nashua Telegraph, or get the Associated Press reports. Some time after the defendant had subscribed for his stock, Towner informed him that Gov. Goodell said he would not have anything to do with the paper if the defendant's name remained on the list. The defendant told Towner to take his name off the list, and supposed he had done so until notified to the contrary. The corporation was subsequently duly organized. The publication of the paper commenced, and afterwards suspended for lack of funds. Something over $25,000 was paid in, which was all expended, with about $14,750 in addition. The corporation, after using all the money and assets, still owes over $4,000.

Charles W. Hoitt, for plaintiffs. George B. French, for defendant.

WALLACE, J. The main ground of defense presented is that the defendant was induced to subscribe for the stock by the false and fraudulent representations of Towner, who solicited the subscription, that they had arranged to buy the Nashua Telegraph, and were going to have the Associated Press news. There is neither a finding of fraud nor any evidence of fraud in the case. No facts were found inconsistent with the utmost good faith on the part of Towner. It does not appear that at the time of the defendant's subscription they had not in fact arranged to buy the Nashua Telegraph, or that they were not going to have-that is, proposed to have the Associated Press news. There is no evidence tending to show that Towner did not believe what he said to be true, and was not acting in perfect good faith. The last expression-that they were going to