association letters written by officers of the association commenting on the merits of plaintiff's claim and discussing its validity were excluded.1 Where the issue was whether or not a forfeiture had occurred, evidence that the general manager of the association had told the assured that some of his assessments were overdue; that he had thereby lost his right to the certificate, and that he was delaying payment at his own risk and peril, was held not admissible.2 § 702. Payment of assessments, good standing, etc.—If the failure to pay assessments is relied upon, the burden of proving such failure is upon the defendant,3 but where the allegation that the member was in good standing, at the time of his death is denied by the answer, the burden of proving such good standing is on the plaintiff.* Where the action is by the assignee of a member, the burden of proving that the assignment was made in accordance with the by-laws of the society is on the plaintiff.5 Where the policy is payable to a number of individuals, between whom the right of survivorship with relation to the contract exists, the burden of proving that any of them survived the others, is upon the party asserting it." If the by-laws of the society require proofs of death to be furnished, and a presentation of such proofs is alleged, of course no further proof of that fact can be 1 Bagley v. Grand Lodge Ancient Order United Workmen, 131 Ind. 498. 2 Odd Fellows' Mutual Aid Ass'n v. Sweetser (Ind.), 19 N. E. 722. 3 Tobin v. Western Mut. Aid Soc., 72 Ia. 261. 4 Siebert v. Chosen Friends, 23 Mo. App. 268. Compare Tobin v. Western Mut. Aid Soc., 72 Ia. 261. Henry v. Trustees of Grand Lodge I. O. M. A., 15 Bradw. (Ill.) 151. • Fuller v. Linzee, 135 Mass. 468. required; but, in the absence of any such provision, the fact of the death of the insured may be established as in other cases, and according to the general rules of evidence on the subject, such as the issuance of letters. of administration, etc.,1 or by circumstantial evidence, when direct evidence is not attainable, to the extent at least of raising a presumption of the party's death.2 § 703. Books as evidence.--The insured in a mutual insurance company, being a member, the books of the company are as much his as other members, and are evidence against him. The question whether the books of a mutual fire insurance company furnish sufficient data for a correct assessment is a question for the jury. The entry of an order upon the minutes of a mutual association, suspending a member for non-payment of an assessment, being only prima facie evidence of its legality, parol evidence is admissible to show that it was by order of an officer alone. The record of a 1 Millard v. Supreme Council American Legion of Honor, 81 Cal. 340; Cunningham v. Smith, 70 Pa. St. 450; McKimm v. Riddle, 2 Dall, 100; Lancaster v. Washington L. Ins. Co., 62 Mo. 121; Newman v. Jenkins, 10 Pick. (Mass.) 515; Jeffers v. Radcliff, 10 N. H. 242; Tisdale v. Conn. Mut. L. Ins. Co., 26 Ia. ̧ 170; s. c. 96 Am. Dec. 136; Munro v. Merchant, 26 Barb. (N. Y.) 383. In an action for a benefit claimed on the death of a member, evidence that defendant's officers declined to receive proofs of death on the ground that the deceased member had been suspended, is not proof of actual suspension such as to require a non-suit. Stewart v. Supreme Council American Legion of Honor, 36 Mo. App. 319. Travelers' Ins. Co. v. Sheppard (Ga.), 12 S. E. 18; Boyd v. New England Mut. L. Ins. Co., 34 La. An. 848. As to absence of party raising presumption of death, see Lancaster v. Washington L. Ins. Co., 62 Mo. 121; Hancock v. American L. Ins. Co., 62 Mo. 26; Sansenderfer v. Pacific Mutual L. Ins. Co., 19 F. 68; John Hancock Mut. L. Ins. Co. v. Moore, 34 Mich. 41; Prudential Assurance Co. v. Edmonds, L. R. 2 App. Cas. 487; Whiteley v. Equitable L. Assurance Soc., 72 Wis. 170. Diehl v. Adams Co. Mut. Ins. Co., 58 Pa. St. 443; s. c. 98 Am. Dec. 302. 4 Marblehead Mut. F. Ins. Co. v. Underwood, 3 Gray (Mass.) 210. • Knights of Honor v. Wickser (Tex.), 12 S. W. 75; Lazensky v. Supreme Lodge Knights of Honor, 31 F. 592, holding also that an application for reinstatement, made by the member, is not competent evidence to prove the fact of his suspension. director's vote authorizing assessment is prima facie evidence of losses and assessments.1 § 704. Demand and notice.-Where the policy provides that the company will pay the beneficiary a percentage of the assessments collected, the beneficiary can recover without proving demand on the company to make assessments, or that assessments have been made, or the amount collected thereon. A finding that notice was not mailed to the insured will not be disturbed, such mailing being proved only by a general course of business of defendant. § 705. Presumptions-Proofs of death and good standing. -Where it is the duty of the subordinate lodge to report the death of the member to the supreme lodge, it will be presumed that the requisite proofs of the death were furnished; especially where defendant refuses to pay on the ground of the fraud in the application.1 Where it was a condition of the certificate that the member should be in good standing at the time of his death, it was held that proof of a recognition of such 1 Connecticut River Mut. F. Ins. Co. v. Way, 62 N. H. 622. 2 Kansas Protective Union v. Gardner, 41 Kan. 397; 21 P. 233; Kansas Protective Union v. Whitt (Kan.), 14 P. 275. 8 Garretson v. Equitable Mut. L. Endowment Ass'n, 74 Ia. 419. As to proof of long continued usage of society to waive personal notice, and the admissibility of evidence of that point, see Stewart v. Supreme Council American Legion of Honor, 36 Mo. App. 319. Where the by-laws of a mutual benefit society require written notice of forfeiture of a policy, proof of any other notice is properly excluded in an action thereon. Dial v. Valley Mut. Life Ass'n, 29 S. C. 560; 8 S. E. 27. 4 Lorcher v. Supreme Lodge Knights of Honor, 72 Mich. 366. By the terms of a certificate the association not being bound to levy an assessment to meet a death loss until 60 days after due proof of the death had been made, a petition which fails to state that such proof had been made is defective. Taylor v. National Temperance Relief Union, 94 Mo. 35; 6 S. W. membership by the defendant up to within a short time of the member's death, in connection with the presumption that all persons follow such laws, rules and regulations as they are under, was sufficient evidence of the good standing of the member to maintain the action.1 1 Lazensky v. Supreme Lodge Knights of Honor, 31 F. 592. Where the constitution of the society provided that if the insured neglected his Easter duties he forfeited at once all his rights and interests in the society, testimony of the priest of the defendant's parish of a negative character to establish defendant's neglect of such duties is not sufficient. Matt v. Roman Catholic Mut. Protective Soc., 70 Iowa, 455; Distinguishing Royal Templars v. Curd, 111 Ill. 284; High Court I. O. Foresters v. Zak (Ill.), 26 N. E. 593. The mere record of a sentence of suspension of the member, without any proceedings whatever to found it upon, and not according to the laws of the order, is not conclusive as to membership and standing. Lazensky v. Sup. Lodge K. of H., 31 F. 592. In an action on a mutual benefit certificate, where the association pleads suspension of deceased for non-payment of dues, testimony by the proper officer that he recollects sending notices to members of a particular assessment, as was his duty and custom to do, and that he believes he sent notice to all on this particular occasion, is evidence of sending notice to a particular member, although the officer cannot swear, positively and specifically, as to such member. Backdahl v. Grand Lodge Ancient Order of United Workmen (Minn.), 48 N. W. 454. In an action against a mutual benefit association on a bond by which it bound itself to pay $5,000 on the death of plaintiff's intestate, and to that end to maintain a death fund, which should be supplied by additional assessments when depleted, it is not incumbent on plaintiff to show that the fund was sufficient to pay this demand, or that the proceeds of proper assessments would be sufficient. The burden is on defendant, in such case, to show that the death fund had become depleted, and that there was a just reason for maintaining it in that condition. Cushman v. Family Fund Soc., 13 N. Y. S. 428. The declarations of a member of a mutual benefit insurance company, made after the certificate was issued, are not admissible, as against the beneficiary, to prove a forfeiture of the certificate by non-payment of assessments. Demings v. Supreme Lodge Knights of Pythias of the World, 14 N. Y. S. 834. 50 CHAPTER XXVII. ACTIONS ON CONTRACTS EXPRESS AND IMPLIED. FIRST.-REMEDIES AVAILABLE TO CREDITORS. § 706. Scope of the subject. 707. The corporation primarily liable. 708. Cannot interfere with the management. 709. Cannot prevent a dissolution or alteration of charter. 710. Lien of creditor attaches to capital after its withdrawal. 711. The form of the unauthorized withdrawal immaterial. 712. Rights of creditors in case of insolvency. 713. Rights altered by formal insolvency of corporation. 714. Rights of director who is also a creditor. 715. Creditors after insolvency entitled to equal treatment. 716. The right to follow funds further considered. 717. Remedies of creditors in case of withdrawal. 718. Devices for absorption of corporate funds. 719. 720. A court of equity furnishes the remedy. 721. Equities between creditors of consolidating companies. 722. 723. A new contract necessary. What constitutes novation. 724. Rights of creditors may be nominally altered. 725. 726. What amounts to the formation of a new corporation. 727. The usual object of re-organization. 728. How usually accomplished. 729. Revivor. 730. Lien of creditors cannot be impaired by re-organization. Substitution of new corporation as debtor by statute. Alterations authorized by charter. 731. 732. 733. The state cannot deprive creditors of the benefits of their con tracts. 734. Right of the corporation to use and dispose of its assets. |