cannot recover for benefits accruing after the commencement of his action.1

The measure of damages is not such amount as the jurors' consciences may approve as just, but the amount provided for such a case by the charter and by-laws of the association.2

But where no holders of death claims had applied to have an assessment ordered by the court, and as it was found expressly that an attempt to raise the money to pay them by an assessment would be futile, it was, held no assessment should be ordered. Unless the association alleges in its answer and proves that the amount should be less, because all members do not respond to assessments, the measure of damages for failure to levy an assessment as agreed is the amount assessable upon all insured. If an action at law would result in only nominal damages, or would for other reasons furnish no remedy, or one that is inadequate, a party may sue

In Elkhart Mut. Aid Ass'n v. Houghton, 103 Ind. 286, a complaint was held sufficient which did not state the number of members of the association against whom assessments might be made to raise the money with which to pay in full or in part the amounts named in the certificate. When a company required by its articles to make an assessment, when necessary, to pay losses, adjusts plaintiff's loss, and neglects to make an assessment in proper time, plaintiff is entitled, in an action on the policy, to amend his petition so as to pray mandamus to compel the levy. Harl v. Pottawattomie Co. Mutual Fire Ins Co., 74 Iowa, 39; 36 N. W. 880. Defendant prayed for an instruction that plaintiff's recovery must be limited to the amount, after deducting all necessary expenses, that an assessment would have realized if made on the death of the assured. The cerificate contained a stipulation that "all suits shall only be for the benefit of an assessment made by the proper officers," and that certain deductions were to be made for expense, account, etc. In this case there had never been any assessment, and the pleadings did not make a case to recover for the neglect. It was held that the court properly refused the prayer. Oriental Ins. Co. v. Glancey, 70 Md. 101; 16 A. 391.

1 Baltimore, etc., Employes' Relief Ass'n v. Post, 122 Pa. St. 579.

2 Balt. & O. Emp. Rel. Ass'n v. Post, 122 Pa. St. 579; 15 A. 885.

* Burdon v. Mass. Safety Fund Ass'n, 147 Mass. 360; 17 N. E. S74.

Bentz v. Northwestern Aid Ass'n, 41 N. W. 1037; 40 Minn. 202. See also Metropolitan Safety Fund Accident Ass'n v. Windover (Ill.), 27 N. E. 538.

in equity for a specific performance of the contract in the form of a decree, compelling an assessment to be levied.1

6

A correct general rule is thus stated: "An action may be maintained on a policy by which the company has undertaken to pay a fixed sum from the death fund,' or from moneys realized to such fund from mortuary assessments' on all the members, though no such assessment has been made. The omission of the company to make it creates an obligation, the same as if the fund were on hand from which to pay the amount of the policy, and, in the absence of proof to the contrary, it will be presumed that the assessment would have realized the full amount." 2

Where an ordinary civil action affords an adequate and specific legal remedy, the beneficiary cannot resort to a proceeding by mandamus.3

Covenant Mut. Ben. Ass'n v. Sears, 114 Ill. 108; Van Houten v. Pine, 36 N. J. Eq. 133. In the first case the court gave as a reason that, as the corporation is not organized for pecuniary profit, has no surplus, and relies entirely upon the mortuary assessments made upon each death for the payment of benefits to the beneficiaries of a decedent, it would be difficult to realize anything by execution; and the association stands as a trustee of a fund in the hands of its numerous members, but belonging to the beneficiaries, which can be called in by assessment for their use. The association was to pay an amount equal to $1.50 for each certificate in force at the time payment became due, not exceeding $4,000, and to pay the full amount of the certificate at its maturity, provided there were sufficient moneys in the fund from which it should become payable, and provided further that such moneys should be applied proportionately to all certificates becoming payable the same quarter. The $4,000 was termed an "endowment," and the period in which it became due, an "endowment period." Provision for assessments, regular and special, was made and the association was required to maintain two funds, an endowment fund, out of which the endowments were payable, and an assessment fund, out of which beneficiaries were paid in case members died within the endowment period. Held that, in case of a member so dying, the association was liable to pay a sum equal to $1.50 for each certificate in force, and no more, where there were no moneys in the assessment fund applicable to such claims. Kerr v. Minnesota Mut. Ben. Ass'n, 39 Minn. 174; 39 N. W. 312.

2 Fitzgerald v. Eq. Reserve Fund L. Ass'n, 5 N. Y. S. 837.

3 Excelsior Mut. Aid Ass'n v. Riddle, 91 Ind. 84. The beneficiary, having obtained judgment in the supreme court against the company for the benefit,

§ 677. When remedy legal and when equitable.-It follows that the rights growing out of such contract of insurance may be enforced like external contracts growing out of the dealings of the organization with third parties; and the insured may recover benefits or his beneficiary a death loss by action at law where a legal remedy is otherwise adequate and appropriate, notwithstanding the fact of membership.

Where the liability of the society is contingent upon the performance of a condition by the insured or his beneficiary, substantial performance, or performance according to the terms of the contracts or provisions of the constitution and by-laws, must be shown.1 Generally the amount of an insurance to be realized by an assessment may be recovered at law.

and execution being returned unsatisfied, applied for mandamus to compel an assessment on the members sufficient to pay the judgment. The company set up that they had made an assessment, and were proceeding in good faith to collect it. Held that, plaintiff having judgment, and an execution returned unsatisfied, no further proceedings could be taken at law, and the mandamus must be refused. Miner v. Michigan Mut. Ben. Ass'n of Hillsdale, 65 Mich. 84; 31 N. W. 763. Compare Ranisbarger v. Union Mut. Aid Ass'n, 72 Iowa, 191; 33 N. W. 626.

1 In Bishop v. Empire Order of Mut. Aid, 43 Hun, 472, the defence set up was the failure of the deceased member to designate a beneficiary. The charter provided for a beneficiary fund, to be maintained by the order for this object, which should be under the control of the grand lodge, and from which a specified sum should be paid over to the families, heirs or legal representatives of deceased or disabled members, or to such person or persons as such deceased may, while living, have directed, and also that the manner and time of payment, and the persons to whom payment was to be made, should be regulated by the rules and by-laws of said grand lodge. The issue of a certificate was also provided for, which it was required should set forth the name of the person to whom the benefit should be paid. No certificate having ever been issued, the court held the defendant not liable, and considered the making of such designation a condition precedent to the defendant's liability. See also, Order Mut. Companions v. Griest, 76 Cal. 494; Earnshaw v. Sun Mut. Aid Soc., 68 Md. 465; 12 A. 884. 2 Reynolds v. Equitable Ac. Ass'n, 1 N. Y. S. 738. The policy provided that "the principal sum represented by the payment of two dollars by each member" in deceased's division, not to exceed a certain sum, should be paid to the policyholder's wife on the requisite proof. The by-laws stated that the object of the association was "to collect and accumulate a fund" for the payment of bene

Substantial damages may be recovered in an action at law on a certificate entitling the beneficiary to a percentage of an assessment to be levied and collected on the death of the insured, when the company has refused to make any assessment, and denied liability, and it appears that an assessment, if made, would produce a substantial sum,1 unless a waiver of such condition is proved.2

fits, and that on the requisite proof an assessment should be ordered for that purpose; but the policy did not contract to make an assessment, or make payment contingent on an assessment. The complaint showed that the number of members in deceased's division would render collectible an amount in excess of the maximum sum named in the policy. Held, that defendant's contract was not to levy an assessment and pay over the proceeds, and therefore enforceable only in equity, but that plaintiff was entitled to the maximum sum, in an action at law. United States Mut. Acc. Ass'n v. Barry, 131 U. S. 100; 9 S. Ct. 755. 1 Jackson v. Northwestern Mut. Relief Ass'n, 73 Wis. 507; 41 N. W. 708. 2 A policy required all insured to make out within thirty days a statement under oath, etc., of the loss. C., within the required time, notified the company of his loss. The company replied to this, repudiating all liability on the ground of non-payment of assessment. It was held, that such an act was a waiver by the company of any further proof of loss. Planters' Ins. Co v. Confort, 50 Miss. 662. An insured declared for loss. The company pleaded that he had altered the buildings, which he traversed by his replication. It was held, that under the pleadings evidence of waiver by the company was inadmissible. Diehle v. Adams Co. Mut. Ins. Co., 58 Pa. St. 443; s. c. 98 Am. Dec. 302. The fact that an association, after it has the right to forfeit a member's certificate for non-payment of dues, levies and collects from him another assessment, and appropriates the money so paid to its own use, is evidence tending to show a waiver of the forfeiture. Metropolitan Safety Fund Accident Ass'n v. Windover (Ill.), 27 N. E. 538. A life policy in a mutual aid society was subject to a by-law that, if any assessment was not paid within 30 days after notice, the policy should be forfeited. Several assessments were allowed to remain unpaid long after the 30 days, and on the day of the insured's death the person to whom the notices had been sent offered to pay the amount of such assessments to the agent. The agent, who had no authority to make arrangements in regard to the standing of members, agreed to accept the money, and forward it to the society, whose office was 28 miles distant, subject to its action in the matter. In his report he said: "If money is not received, must be refunded." About 10 days afterwards, the society gave notice, through the agent, that the payment would not be accepted, and offered to return the money. Held, that the question whether the delay in refusing the money amounted to a waiver of the forfeiture was for the jury. United Brethren Mut. Aid. Soc. v. Schwartz (Pa.), 13 A. 769. The statement of the secretary of a mutual benefit association to the insured that he need not pay his dues until certain charges then pending

§ 678. Payment of advance fee. Where the defence was non-payment of fees required as a condition precedent to membership, it appeared that the certificate had been forwarded to the deceased who was one of its agents; that the accounts between him and the company were confused; that on one occasion they had returned to him part of a remittance sent by him on the ground that it was an over-payment; that they had published his name in the list of members and had levied a mortuary assessment upon him as if he were a member. It was held that this evidence warranted the jury in finding that the fee had either been paid or its payment waived as a condition precedent.1

§ 679. Proofs of disability.-The by-laws of a benefit society may require the approval of proofs of a member's disability to be satisfactory to the subordinate council, but such subordinate council has no power to finally reject a claim.2 Where the original beneficiary brings an action upon a changed certificate, and any proper regulation of the society has been violated by such change, he must aver and prove the same.3

§ 680. Knowledge of by-laws. As the by-laws form part of the contract, a replication alleging ignorance of the same, and the contracting of debts and expenditures of money through mistake, constitutes no cause of

against him, which, if true, made the policy forfeitable, were disposed of, is not ultra vires, but binds the company. Jones v. Nat. Mut. Ben. Ass'n (Ky.), 2 S. W. 447. Where defects in the formalities prescribed by the law of a society as to a change in the designation of a beneficiary have been waived by the society and the benefit paid, the former beneficiary cannot take advantages of such defects. Manning v. Ancient Order of United Workmen, 86 Ky. 136; 5 S. W. 385.

1 Bankers & Merchants' Mut. L. Assn. v. Stapp, 77 Tex. 517.

2 Albert v. Order of Chosen Friends, 34 F. 721.

3 Masonic Mut. Ben. Soc. v. Burkhart, 110 Ind. 189; 10 N. E. 79; 11 N. E.