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this action to recover upon four promissory notes, each of which was made payable to J. M. Thomas or order, and signed "Marcus Landsberg, by Nathan Landsberg". The defendant appeals from the judgment.

It is claimed that for three reasons the complaint does not state a cause of action: 1. Because the copy of the note set out in each count shows that it was not executed by the defendant as alleged in the complaint, but by Nathan Landsberg, and there is no allegation in the complaint that Nathan Landsberg had any authority to execute the note for or in the name of Marcus Landsberg. 2. Because there is no allegation in either of ihe four counts that the notes or either of them were ever delivered to the plaintiff. 3. Because the endorsements on each note set out in the complaint show that the same was not endorsed by J. M. Thomas, the payee, but, on the contrary, show in each instance the name of some person other than plaintiff following the name and endorsement of J. M. Thomas, ani, therefore, that the endorsement made by J. M. Thomas must have been made to such other person and not to plaintiff.

The complaint in each count alleged that the defendant made, executed and delivered to J. M. Thomas the described note. [1] This is not negatived by the mere fact that the form of signature to the note was as above stated. (Goetz v. Goldbaum, 37 Fac. 646; 4 Cal. Unreported 749.)

The complaint in each count alleged that at a stated time the said J. M. Tion:as "endorsed said note to paintiff and plaintiff at all tiines since has been and is now the owner and holder of said promissory note". 121 We think that this was a sufficient statement that the note was delivered by Thomas to plaintiff. It is true that in a certain sense there may be an endorsement of a note prior to delivery thereof; but to construe the stated allegation as merely alleging an endorsement without delivery. would be to ignore the meaning of the langauge used in the allegation as quoteabove. There was no demurrer on grounds of uncertainty cr ambiguity in the complaint. The sole point urged is that the complaint does not state a cause of action.

It is true that in each count the copy of the note as set forth carries a series of names endorsed thereon of which J. V. Thomas is not the last name. 131 This is not alone sufficient to overcome the allegation that Thomas endorsed the note to plaintiff. The judgment is affirmed.

We concur:


Civil No. 2326. First Appellate District. July 30, 1918. FLORA A. VALENTINE, Plaintiff and Respondent, V. HEAD


[1] BENEFIT SOCIETIES--DELINQUENCY OF Dưes-SUSPENSION OF MEMBER.--Where the laws of a benefit society provide that unless the monthly assessments and dues are paid to the camp clerk within the prescribed time the benefit certificate issued to the member shall be void and continue so until he is reinstated by the authority of the head camp and the by-laws of the local camp, the member is ipso facto suspended at the time of his first delinquency and continues so suspended until he has complied with the requirements of the order as to reinstatement, notwithstanding the subsequent payment of the dues, unless the laws of the society have been waived by the acceptance of payments of his dues after his suspension.

121 ID.—WAIVER-COURSE OF CONDUCT.-In such a case a waiver must rest upon a course of conduct or a statement by the insurer to the insured by which the latter was misled into supposing that he was still, or by the payment of the delinquent dues became, in good standing in the society.

13) ID.—FINDINGS-EVDENCE.—The findings of the trial court that the husband of the plaintiff was not delinquent at his death. that he was in good standing in the order at that time and that his delinquency had been waived by the society are not sustained by the evidence.

Appeal from the Superior Court of Alameda County-N. D. Arnot, Judge.

For Appellant-Robinson & Robinson, Harry L. Price.
For Respondent-Stanley Moore, Geo. K. Ford, Wilder Wight.

On February 5, 1901, Clarence A. Valentine, husband of the plaintiff, became a member of the Head Camp, Pacific Jurisdiction, Woodmen of the World, and received thereupon a fraternal benefit certificate of insurance, providing for payment to the plaintiff as his named beneficiary, of three thousand dollars upon his death. He died on August 22, 1912, and this action was instituted by his wife, plaintiff, to recover the three thousand dollars on this certificate.

For some time prior to his death, Mr. Valentine was a member of the local lodge or camp of the fraternal benefit insurance society known as the Woodmen of the World. The name of the local camp was “Bay Tree Camp No. 640", and its headquarters were at Oakland, California. The officer in charge of the collection of all dues and assessments payable on Valentine's benefit certificate was one George D. Brisley, who was the local camp clerk.

Valentine became delinquent on his assessments in May, 1911, and was delinquent in his payments from that date until two days before his death. Brisley accepted partial payments of Valentine's delinquency for a period of more than fifteen months after he first became delinquent. This was in accordance with a custom of the local camps of the order to accept arrearages on assessments from delinquent members, either in full or partial payments. On May 27, 1912, a receipt was issued to Valentine for $21, leaving then a balance due from him to the Head Camp of $14; and on June 17, 1912, he made a further payment of $3 on account,

in response to a notice from Brisley requesting such payment. Other similar payments were made from time to time; these pav. ments were made on request from Brisley that Valentine pay "something on account", the last such payment being dated May 1, 1912. Valentine, who was a carpenter, fell from a ladder on a building on which he was employed on August 17, 1912, and being injured by his fall, was taken to a hospital. Two days later nis wife, the plaintiff, called on Brisley and explained her husband's condition, as far as known to her at that time, and told Brisley that Valentine was seriously sick. She thereupon paid Brisley $23.20 to cover all Valentine's back dues and delinquent assessments. The deíendant charges that Mrs. Valentine deceived Brisley, but the practically undisputed testimony shows no fraud or deceit practised by her. The trial court found that she was free from such imputation and the evidence sustains this finding. Brisley, when he accepted the $23.20 payment, gave Mrs. Valentine a reinstatement blank which he apparently filled out in part at least in his own handwriting, and he assured her that her husband was upon that payment in good standing until the end of August, 1912.

As heretofore stated, Mr. Valentine died on August 22nd. His neck, it developed, had been broken by his fall. At the time of her payment to Brisley, Mrs. Valentine did not know the full extent of her husband's injuries. The fact that his neck had been broken was discovered by an x-ray examination made subsequent to that payment.

The trial court gave judgment for Mrs. Valentine, the plaintiff. On the facts above stated, and others hereinafter mentioned, it is contended that Valentine was not in good standing in the order at his death and so his beneficiary is not entitled to recover against the defendant.

Valentine's benefit certificate provides that the beneficiary is entitled to participate in the benefit fund of the order after his death in good standing and not otherwise; and that the certificate will not be in force when he stands suspended and is not in good standing. A further provision of the certificate is that it is issued upcn agreement of the member that he will promptly pay all assessments and dues; and that if they are not paid to the camp clerk by the first day of the month following the month for which they are called and in which they are payable, the certificate shall be void and continue so until he is reinstated by the authority of the Head Camp and the by-laws of the local camp. To be in good standing at his death according to the constitution and law of the Head Camp and the by-laws of the camp of which he is a membei is made "an imperative condition precedent to the right of any beneficiary to receive any benefit whatsoever upon his death” and under the caption “Important" appears this statement: “Any member who fails to pay his camp dues or benefit assessments during the month in which same severally are payable shall stand suspended and until and unless reinstated neither he nor his bene. ficiaries shall be entitled to any of the rights and privileges of a member of the Order." There are other provisions of the constitution and by-laws of the same import.

In meaning, the foregoing provisions are not different from the

provisions of similar laws of the society known as “The Ancient Order of United Workmen," passed upon in Butler V. The Grand Lodge, A. 0. U. W., 146 Cal. 172, where it was held by the supreme court that a member was ipso facto suspended upon being delinquent in payment of dues and assessments and that he can only be reinstated upon complying with the laws of the society for reinstatement of suspended members, and that he cannot become entitled to participate in the beneficiary fund until his suspension had been set aside and his certificate had been renewed in conjormity with the rules of the order.

[1] By the above quoted provisions of the laws of the Woodmen of the World, Valentine was therefore, under the authority of Butler v. Grand Lodge, A. 0. U. W., supra, suspended at the time cf his first delinquency and continued to be so suspended at the time of the payment by his wife, made on August 18th, unless the provisions of the certificate and of the laws of the order suspending him had been waived by the acceptance of his payments of dues after his suspension. He did not comply with the requirements of the order as to reinstatement, which contemplated the filing by him of a written application for reinstatement, providing among other things that he warranted and represented himself to be in sound bodily health and not engaged in, nor intending to engage in, any vocation prohibited in section 104 of the constitution of the Head Camp, and also offering to pay all arrearages of benefit assessments, equalization payments and camp dues. l'pon filing such written application for reinstatement, and favorable action thereon by the Head Camp, he might be reinstated and become again entitled to participation in the beneficiary fund. No such application was ever made, so far as the evidence shows, by Mr. Valentine, and none was made by him or on his behalf uniil after his injury, when, manifestly, it was too late, under the laws of the order, to apply for reinstatement. In this state of the case, respondent claims that the Head Camp waived its right to insist upon the consequences of Valentine's delinquency, by accepting the payments on account as hereinbefore detailed; in other words, that by accepting the partial payments upon his delinquency from time to time, the Head Camp estopped itself to insist upon the forfeiture of Valentine's rights to participate in the beneficiary fund. This waiver took place, if at all, before the date of Mrs. Valentine's payment to Brisley after Mr. Valentine's injury, for the events which transpired at that time could noi effect a reinstatement, owing to the provisions of the laws of the society, that before he could be reinstated the delinquent member must show himself to be in sound bodily health.

12] Now, a waiver in such cases must rest upon a course of conduct or a statement by the insurer to the insured, by which the latter was misled into supposing that he was still, or by the pay. ment became, in good standing in the society. The rule is thus stated in 25 Cyc. 867, as quoted in respondent's brief: “If by its course of dealing with the insured, or by its general course of business known to him, the company misleads him into believing that the strict terms of the policy as to payment of premiums will not be insisted upon, it cannot afterwards take advantage of a forfeiture thus induced.' The trial court found that Valentine was so misled, but its finding is in direct defiance of the evidence, for Valentine knew when he was injured that he was not in good standing, as is shown by the testimony of Mrs. Valentine herself, who said: “I went to Mr. Brisley on August 19th. I came to go to Mr. Brisley two days after my husband's accident to see that his dues were paid. At that time I knew that his dues had not been paid, because Mr. Valentine had told me so. He was very anxious about the matter. He told me on the Sunday morning after the accident that I should go over and see Mr. Brisley and settle up his dues. He did not tell me he was delinquent." Only one construction can possibly be placed upon this evidence, and that is that Mr. Valentine knew that it was necessary for him to settle his dues in order to be in good standing with the society.

We think it unnecessary to further pursue this matter. 131 The findings of the court that Valentine was not delinquent at his death, that he was in good standing at that time in the order, and also that his delinquency had been waived by the society itself, are not sustained by the evidence.

We may add to this, however, that it is contended that Brisley had the right to waive Valentine's delinquency, but the laws of the society, which, as was held in Butler v. The Grand Lodge, A. 0. l'. W., supra, constituted the contract between the parties, expressly provided that Brisley was not acting as the agent of the Head Camp in the matter of collecting dues, and it seems clear that he was not authorized to waive any of the conditions of the certificate or the laws of the society as to the reinstatement of delinquent members. The judgment is reversed.

BEASLY, J. pro tem.
We concur:

ZOOK, J. pro tem.



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