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goods, estate, and body of the said Rufus H. Brigham. See Look v. Luce, 136 Mass. 249.

So ordered.

(143 Mass. 435)

CROSSMAN, Adm'x, 0. MASSACHUSETTS BENEFIT Ass'n.

(Supreme Judicial Court of Massachusetts. Bristol. January 11, 1887.) 1. LIFE INSURANCE-CO-OPERATIVE INSURANCE-RESERVE FUND-PAYMENT OF LOSSES

LEVY OF ASSESSMENTS-Sr. Mass. 1880, CH. 196, % 3.

St. Mass. 1880, c. 196, 3, providing that beneficiary associations, etc., "shall have the right to hold, at any one time, as a death fund, belonging to the beneficiaries of anticipated deceased members, an amount not exceeding one assessment,” does not require that losses as they occur shall be paid from this fund, but the officers,

at their discretion, may lay an assessment to pay such losses. 2. SAME-CONDITIONS RENDERING CONTRACT VOID-NON-PAYMENT OF ASSESSMENT-RE

INSTATEMENT—WAIVER AS TỌ FUTURE ASSESSMENTS.

A condition in the contract of insurance with a mutual benefit association that a failure to comply with the rules of the company as to payments shall render the certificate void, is not waived, as to future payments, by the fact that the officers have reinstated the holder of the certificate when he has failed to make payment according to the rules of the company; especially when another rule, which is a part of the contract, allows the officers to so reinstate a beneficiary, on payment of arrears, for any valid reason. Contract to recover on two certificates of membership in the defendant association. Trial in the superior court, before BARKER, J., who ruled that there was no evidence that would warrant a verdict for the plaintiff, and ordered a verdict for the defendant, and, at the request of the plaintiff, reported the case for the determination of the supreme judicial court. The facts are stated in the opinion.

W. C. Parker and R. F. Raymond, for plaintiff.

The non-payment of the assessment was no forfeiture. In re People's Mut. Eq. Fire Ins. Co., 9 Allen, 319. Our claim is that, until this sum was exhausted, the association had no authority to call another assessment, either under the statute relating to assessment insurance, or under a reasonable construction of the contract contained in the policies. Defendant corporation was organized under Acts 1874, c. 375, as amended by Acts 1877, c. 204. See Acts 1872, c. 325, § 7. The supreme court has decided that societies agreeing to pay to beneficiaries of deceased members the sum of certain assessments made upon surviving members were insurance companies. Com. v. Wetherbee, 105 Mass. 149. See Acts 1875, c. 107; Acts 1877, c. 204. There was no reserve fund authorized or contemplated or needed. See Acts 1874, § 7; Acts 1880, c. 196. In none of these acts is a reserve named or provided in any way. Life insurance companies are obliged to have a guaranty capital. See Gen. St. c. 58, § 60; Pub. St. c. 119, § 145; Acts 1866, c. 33; Acts 1863, c. 148; Acts 1871, c. 297, § 1; Gen. St. c. 58, 4; Pub. St. c. 119, $ 17. Assessment companies are exempted from all these provisions. Acts 1877, c. 204, § 2; Acts 1880, c. 196, § 4. See Acts 1872, c. 325, § 7. The only fund that is spoken of is a death fund, to be kept until the death of a member, and then distributed.

As to the contract. It is orie of 'life insurance in all essential elements, and should be construed with reference to the statutes authorizing it to be made. Com. v. Wetherbee, supra; Acts 1872, c. 325, § 7. The only fair construction is that the assured was not to be called on beyond his anniversary payment, unless money was needed because of the happening of a death.

The court wrongly ruled that there was no evidence to go to the jury on the question of the waiver by the association. See Insurance Co. v. Norton, 96 U.S. 234; Hanley y. Life Ass'n of America, 69 Mo. 380; Bliss, Ins. $ 266. It is competent to show a subsequent paről agreement to waive, mod.

v.9N.E.no.8—48

ify, or annul the provisions of a written instrument. Cummings v. Arnold, 3 Metc. 486; Stearns v. Hall, 9 Cush. 31; Leathe v. Bullard, 8 Gray, 545. So a waiver of a clause in an insurance policy may be by acts, as well as by express words. Titus v. Glens Falls Ins. Co., 81 N. Y. 410; Insurance Co. v. Norton, 96 U. S. 234; Insurance Co. v. Eggleston, Id. 572; Phønix Ins. Co. v. Doster, 106 U. S. 30; S. C. 1 Sup. Ct. Rep. 18; Insurance Co. v. Wolff, 95 U. S. 326; Buckbee v. United States Ins., A. & T. Co., 18 Barb. 541; Viele v. Germania Ins. Co., 26 Iowa, 9; Home Life Ins. Co. v. Pierce, 75 Ill. 426; Wing v. Harvey, 5 De Gex, M. & G. 265; Phoenix Ins. Co. V. Lansing, 20 N. W. Rep. 22; Morrison v. Life Ins. Co., 59 Wis. 162; S. C. 18 N. W. Rep. 13; May, Ins. § 361; Bliss, Ins. § 266. There may be a waiver, also, by conduct amounting to estoppel. May, Ins. §_361; Bigelow, Estop. 633. See Helme v. Philadelphia Life Ins. Co., 61 Pa. St. 107; Insurance Co. v. Norton, supra; Insurance Co. v. Eggleston, supra; Mayer v. Mutual Life Ins. Co. of Chicago, 38 Iowa, 304; Tripp v. Vermont Life Ins. Co., 55 Vt. 100; S. C. 12 Ins. Law J. 854; Thompson v. St. Louis Mut. Life Ins. Co., 52 Mo. 469; Howell v. Knickerbocker Life Ins. Co., 44 N. Y. 276; Hanley v. Life Ass'n, supra. This is a question for the jury. Bigelow, Estop. 636; Com. v. Porter, 10 Metc. 263, 276; Insurance Co. v. Norton, supra. See Holmes, Common Law, 123 et seq.; Sheldon v. Connecticut Mut. Ins. Co., 25 Conn. 207; Enterprise Ins. Co. v. Parisot, 35 Ohio St. 35. The acts and course of dealing, evidence of which we ask may go to the jury to determine the question of waiver, were clearly the acts of the association, and not of its agent.

E. Avery and A. E. Avery, for defendant.

The assessment numbered 24, levied on each policy on December 1, 1884, was legal and authorized. All assessments made pursuant to the act of incorporation and by-laws are prima facie reasonable and valid. Acts & Resolves Mass. 1874, c. 375, § 6; Pub. St. Mass. c. 115, § 5. An assessment made in good faith, upon correct principles, and substantially correct, is binding. Marblehead Ins. Co. v. Underwood, 3 Gray, 210. The records of the defendant association are sufficient prima facie evidence of the legality of the assessment levied. People's Ins. Co. v. Allen, 10 Gray, 297. The two grounds on which the plaintiff relies as showing the assessment to be illegal are: (1) That there was no law authorizing the accumulation of the reserve fund; (2) that in such reserve fund there was more money than was required to meet its current obligations. The answer to the first is found in the provisions of the act of 1880, (chapter 196, § 3.) If the defendant corporation, under this statute, had the right to accumulate and hold a death fund, the second objection fails with the first. It does not, however, follow that, if the accumulation of the reserve death fund was not authorized by the law, the assessment of December 1, 1884, was illegal. We submit that, under the act of 1880, the defendant corporation had the right to accumulate and hold a reserve death fund in trust for the beneficiaries. The right to apply this fund to the payment of death claims was vested in the officers as trustees, and no single member had the right to insist upon its being used, at any given time, to relieve him of his assessments. The ruling of the court, that the plaintiff was not entitled to go to the jury on the question of waiver, was correct. We submit that the evidence shows that there was no waiver, or intent to waive the prompt payment of the assessments.

MORTON, C. J. Each of the certificates under which the plaintiff claims, provides that “a failure to comply with the rules of said association as to payment, or falling into gross and confirmed habits of intoxication, shall also render this certificate void.” It is admitted that the deceased, R. H. Crossman, with whom the contract was made, and of whom the plaintiff is the widow and administratrix, failed to pay an assessment levied on December

1, 1884, and payable December 30, 1884, and that such assessment has never been paid. Prima facie this failure to comply with the rules rendered his certificate void. But the plaintiff contends that the assessment was illegal and invalid, because, at the time it was laid, the association had money enough in its hands to meet all its obligations, and therefore that it was not authorized to lay an assessment.

We agree with the counsel for the plaintiff that it was not the intention of the legislature that associations of this character should become great financial institutions, with the capacity of accumulating and holding funds to an unlimited amount. The legislature has established the limits to which they may go in this direction. St. 1880, c. 196, § 3, provides that “any beneficiary corporation, association, or society organized under the laws of this commonwealth shall have the right to hold, at any one time, as a death fund belonging to the beneficiaries of anticipated deceased members, an amount not exceeding one assessment from a general or unlimited membership, or an amount not exceeding in the aggregate one assessment from each limited class or division of such society or association.”

In the case before us, it is not shown that the defendant has exceeded the authority conferred on it by this statute. The report states that in 1881 the defendant began to accumulate a fund called, in their books, a “reserve fund," and that “on December 1, 1884, said reserve fund, so accumulated, amounted to $67,281.17; and each policy-holder had contributed to that fund a sum equal to one death assessment upon his policy.” At that time “the association had been notified of death losses amounting to $55,000, which remained unpaid,” some of which were contested. It is in material whether the fund authorized by the statute is called on the books a reserve fund or a death fund. The object of the legislature probably was to enable the associations to strengthen their position by accumulating a fund to meet unusual emergencies. The idea of holding money as a fund imports permanency, to some extent. The statute does not provide that losses by death shall be paid out of this fund as they occur. To do this would soon deplete and destroy the fund, and defeat the object of the statute. Nor does the statute, directly or by implication, provide that no assessment shall be laid so long as there is enough money in the reserve fund to meet losses as they occur. The officers of the association might use a part of the fund to pay a loss. They are not compelled to do so. But it was within their discretion to lay an assessment.

The plaintiff contends that the statute was passed to meet the case where a large association lays an assessment, which is of greater amount than is necessary to pay losses by death which have occurred, and that by its true construction it only authorizes the associations to hold the balance as a fund until other deaths occur. But this is not the direct and natural meaning of the language used; and the proviso that “nothing in this section shall be held to restrict such fund to less than ten thousand dollars" contradicts this construction, as under it any association may hold a fund equal to ten thousand dollars, although a death assessment amounts to less than that sum. We are therefore of opinion that, according to law and according to the contract of the parties, the assessment in question was legal and valid.

The plaintiff further contends that the superior court erred in the ruling that there was no evidence which would warrant the jury in finding that the defendant had waived the provisions of the contract rendering them void upon failure to pay the assessments within 30 days. The evidence shows that the deceased was habitually unpunctual in paying his assessments, and that, in many instances, the defendant received the assessments after they were due, and reinstated him as a member of the association. This was a waiver of these several forfeitures. But there is no evidence to show that the defendant intended to waive the future prompt payment of the assessmerits as one of the conditions of the contract, or that the deceased, as a rea

sonable man, was led to believe by its actions that it had waived this condition.

The third rule, which is a part of the contract, provides that, if the assessment is not received within 30 days from the mailing of the notice, it shall be taken “as sufficient evidence that the party has decided to terminate his connection with the association, which connection shall thereupon terminate, and the party's contract with the association shall lapse and be void; but said party may again renew his connection with the association by a new contract made in the same manner as at first, or, for valid reasons to the officers of the association, (such as a failure to receive notice of an assessment,) he may be reinstated by paying assessment arrearages.” It is to be presumed that, in making and receiving the several payments in arrears, the parties acted under this provision of their contract. There is no evidence to the contrary, but there is evidence that in several instances the officers required him to sign certificates that he was in good health before they would reinstate him. The whole evidence shows that both parties understood that they were acting under the third rule; that default in prompt payment of assessments was not immaterial, but was vital, and worked a forfeiture, which a beneficiary could not escape unless the officers, for reasons satisfactory to themselves, saw fit to readmit or reinstate him. No one can fairly draw an inference from this course of proceeding that there was any waiver by the defendant of the provisions of the contract requiring prompt payment of assessments.

Judgment on the verdict. (143 Mass. 424)

In re COUNTY COM'RS OF HAMPSHIRE Co., Petitioners. (Supreme Judicial Court of Massachusetts. Hampshire. January 11, 1887.) 1. WATERS AND WATER-COURSES-RIVER BANK - IMPROVEMENT OF-APPORTIONMENT OF

EXPENSE TO PARTIES BENEFITED—St. Mass. 1875, Ch. 200-APPEAL.

Under St. Mass. 1875, C. 200, providing that the county of Hampshire shall make certain public improvements, and, in the first instance, bear the expense thereof, and that, on its completion, three special commissioners shall be appointed to determine and decree what towns, persons, etc., are benefited, and what proportion of the cost shall be paid by each, and further providing that “any party affected by and dissatisfied” with the decree may appeal to a jury, an appeal by one

party only opens the question of the liability of that party, not the whole case. 2. SAME-DELAY OF COUNTY COMMISSIONERS_LACHES-ASSESSMENT.

Delay on the part of the county commissioners in performing the work does not constitute laches, so as to prevent the assessment on any parties benefited. The commissioners are simply a board of public officers, to whom the legislature have

intrusted the performance of the work. 3. SAME-INTEREST ON SUMS EXPENDED.

In fixing the assessment, interest on sums expended may be included as part of

the cost of the work. 4. SAME-RAILROAD COMPANY-ASSESSMENT-ST. MAss. 1883, CH. 64.

The trustees of a railroad company, under St. 1883, c. 64, providing that, while the property of the company remained in their hands, they should be subject to

the duties and liabilities of the company, are, as trustees, liable to the assessment. 5. SAME-RECORD OF COUNTY COMMISSIONERS, CONCLUSIVE ONLY AS TO AMOUNT Ex

PENDED—INTEREST.

Although the act providing for the improvement required the county commissoners to make a record of their doings, and the cost, and provided that the special commissioners should decide as to the proportion, simply, to be paid by parties benefited, the record of the county commissioners is conclusive only as to the amount actually expended; and, where they figure compound interest thereon, their computation may be changed by allowing only simple interest. Petition under the statutes of 1875, c. 200, for the appointment of a special commission to apportion the expense incurred, as therein authorized, in protecting the banks of the Connecticut river. Trial in the supreme court, before FIELD, J., where the jury returned a verdict finding that the cost of the work, which amounted to $14,221.31, should be paid for by the following per

sons, towns, and corporations, in the proportion stated: Hadley, 8-30; Amherst, 1-30; Northampton, 8-30; Hampshire county, 8-30; and Samuel N. Aldrich, Thomas N. Perkins, and Henry Woods, trustees, holding the property of the Massachusetts Central Railroad Company, 5-30. The court, after verdict, reported the case to the full court. Other material facts are stated in the opinion.

Wm. G. Bassett, for Hampshire Co.

The ruling permitting Northampton to go to the jury as to the amount of its liability, if they found that any existed, was too favorable. No such trial was accorded by the legislature. Only the question whether the city was benefited, and therefore a party liable to be assessed, was open. The special commissioners were to “determine” the parties benefited, and “decree” the proportion of the cost to be paid severally by them. Any party affected by the “decree," and dissatisfied with the “determination,” might appeal from the "award.” It is submitted this is an appeal from the decree as to proportion. Laws 1875, c. 200, § 3; Sunderland Bridge Case, 122 Mass. 459, 461; Northampton Bridge Case, 116 Mass. 442.

But, if this is not so, yet the entire question that was before the commissioners—what parties, if any, were benefited, and the proportion to be assessed to each—could not be for the jury, as claimed by the city, no other party consenting. It could only be permitted to try to secure a verdict more favorable tö itself than the decision against it. The court have held that a general apportionment, in a matter like this, is analogous to a suit in equity, in which many parties are interested. Salem T. & Chelsea B. Co. y. Essex, 100 Mass. 282, 286. And one of joint defendants in equity, by his sole appeal, severs and brings up only so much of the case and such of the parties as are necessary for the determination of his rights. Todd v. Daniel, 16 Pet. 521; Forgay v. Conrad, 6 How. 202; Milner v. Meek, 95 U. S. 252; Hassall v. Wilcox, 115 U. S. 598; S. C. 6 Sup. Ct. Rep. 189.

A decree in favor of several parties, respectively, cannot be joined to make the amount necessary to give jurisdiction to the court appealed to, (Farmers' Loan & Trust Co. v. Waterman, 106 U.S. 265, 270; S. C. 1 Sup. Ct. Rep. 131;) nor claims of libelants in admiralty, (Ex parte Baltimore & 0. R. Co., 106 U. S. 5; S. C. 1. Sup. Ct. Rep. 35.) When a judgment operates as a several as well as a joint judgment, a writ of error may

be sued out by parties severally, and affect only themselves. Cox v. U.S., 6 Pet. 172; Shaw v. Blair, 4 Cush. 97. When a judgment is for both plaintiff and defendant, in replevin of chattels declared for in one count, appeal by one party only from the judgment against him does not reopen the whole judgment. Vinal v. Spoffard, 139 Mass. 126; May v. Gates, 137 Mass. 389; Downing v. Coyne, 121 Mass. 347; Howe, Pr. 448.

This appeal is some like that from the decision of commissioners in an insolvent estate of a deceased person. Pub. St. Mass. c. 137, § 11. The difficulty of investigating a matter like this by a jury has been noticed by this court. Salem T. & Chelsea B. Co. v. Essex, ubi supra, 287.

The ruling that there was no laches was correct. Fairbanks v. Fitchburg, 132 Mass. 42, 48; Bradley v. Greenwich Board of Works, 3 Q. B. Div. 384. The county is not responsible for the delay of the county commissioners, who were not its agents in doing the work, and instituting proceedings, before this court, but public officers, vested with quasi judicial functions, deriving their power from the sovereign authority. Young v. Yarmouth, 9 Gray, 386, 389; Brimmer v. Boston, 102 Mass. 19, 22; Taber v. New Bedford, 135 Mass. 162. Any party could petition for mandamus to compel them to act earlier. Bradley v. Greenwich, etc., ubi supra.

Interest was properly included. The idea of indemnity to the county contemplated by the act necessarily included interest. Haverhill B. Propr's v. County Com'rs, 103 Mass. 120, 128; Old Colony R. Co: v. Miller, 125 Mass.

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