author: Henderson, J.,

text:
    Freeman’s Estate
    (No. 1).

      Wills — Vested and contingent estates — Remainder—Power of appointment.

    A remainder should always be considered vested rather than contingent if the words of the will creating it are capable of such construction. The interest vests immediately, and the enjoyment only is postponed.
    In the absence of an expressed contrary intention, a legacy received in default of appointment, vests in the legatee on the death of the testator, subject to be divested by the exercise of the power of appointment. This is so because the power of appointment does not create an estate, nor hold it in abeyance. Its effect is to divest an estate which, but for the exercise of the power, would remain in the devisee or legatee.
    The general rule that a gift of personal property for life will vest in the legatee an absolute interest in the subject of the bequest, is not a rule of law, but one of construction to aid in ascertaining the intention of the testator. Where a different intention is apparent, the rule does not apply; and where the gift for life blends real and personal estate, the presumption is that the testator intended to give a life estate only in the personalty.
    Testator gave his estate to a trustee, the income therefrom to be paid to his four sons and two daughters,, in equal shares for life, with the further direction, “from and after the death of either of my sons or .daughters and until the death of all of them, to pay the income which he or she would, if living, have received to such person or persons of kin to such son or daughter as he or she may by will have appointed . and in default of such appointment to the child or children of such son or daughter that may then be living, or the issue of any child or children of such son or daughter that may then be dead, leaving issue, in equal shares equally, as however that such issue shall take per stirpes only a parent’s share, and if there be no children or issue of such son or daughters then such person or persons as would take from, through or under me had I lived until then and died intestate.” After the last surviving child died the estate, real and personal, was to be divided among the persons receiving, or entitled to the income thereof immediately prior to such death. Before the division of the estate one of the sons died leaving a will by which he gave all his real and personal estate, and also the interest in his father’s estate over which he had power of appointment, to his wife to take and use the same and the net income thereof during her natural life. A child of the deceased son died before a division of the estate, leaving a will by which he gave everything to his wife. Held, that the widow of the son took a life estate only under the will of her husband, and that as to the remainder of the income from the son’s share not disposed of by the power of appointment, the title was in the children of the son and the widow of their deceased brother.
    Argued Oct. 8, 1907.
    Appeal, No. 263, Oct. T., 1906, by Isobel D. Frost, from decree of O. C. Phila. Co., Jan. T., 1881, No. 228, directing payment of income in Estate of Henry G. Freeman, deceased.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Petition for decree to pay over income.
    The facts appear by the opinion of the Superior Court.

      Error assigned was the following decree:
    December 3, 1906. It is ordered and decreed that the Girard Trust Company, trustee under the will of Henry G. Freeman, deceased, do pay unto the petitioner, Anna Dimond Freeman, one-fourth of one-sixth of the net income of said estate accruing since the date of the death of S. Augusta Freeman, widow of Charles Dudley Freeman, deceased, to wit: June 26, 1906, and that the said trustee do further pay to the said Anna Dimond Freeman one-fourth of one-sixth of any and all income which may hereafter accrue and become payable upon the estate, real and personal, of said Henry G. Freeman, deceased.

      Henry Budd and Samuel Dickson, for appellant.
    — The recognized rule of law governing bequests of personalty, is that a gift of personalty, even if expressly for life, unless there be interposed a trust, or there be a bequest over after the death of the first taker, will vest in that taker the absolute, property in the subject of the bequest. To the rule as thus stated, it may be added that a residuary clause may under some circumstances have the effect of preventing an absolute gift from being inferred from the will: Ritter’s Estate, 148 Pa. 577; Merkel’s App., 109 Pa. 235; Brownfield’s Estate, 8 Watts, 465; Follweiler’s App., 102 Pa. 581; Drennan’s App., 118 Pa. 176; Iiardaker’s Est., 204 Pa. 181; Sillcnitter’s Appeal, 45 Pa. 365; Taylor v. Bell, 158 Pa. 651; Sproul’s App., 105 Pa. 438.
    February 28, 1908:

      J. B. Colahan, 3d, and John I. Rogers, for appellee.
    — The law favors vested rather than contingent estates and especially where the latter would work an intestacy: Ryon’s App., 124 Pa. 528; Cascaden’s Est., 153 Pa. 170; Siddall’s Est., 180 Pa. 127; Wengerd’s Est., 143 Pa. 615; Ritter’s Est., 148 Pa. 577; Gill’s Est., 5 Pa. C. C. Rep. 616; Phillip’s Est., 205 Pa. 504; Xander v. Easton Trust Co., 217 Pa. 485.
   Opinion by

Henderson, J.,

The testator gave his estate to a trustee, the income therefrom to be paid to his four sons and two daughters, in equal shares for life, with the further direction, “from and after the death of either of my sons or daughters and until the death of all of them, to pay the income which he or she would, if living, have received to such person or persons of kin to such son or daughter as he or she may by will have appointed and in default of such appointment to the child or children of such son or daughter that may then be living, or the issue of any child or children of such son or daughter that may then be dead, leaving issue, in equal shares equally, as however that such issue shall take per stirpes only a parent’s share, and if there be no children or issue of such son or daughter then such person or persons as would take from, through or under me had I lived until then and died intestate.

“In trust when and so soon as the longest, liver of them, my sons and daughters, shall be dead, to make partition, allotment and division of my entire estate, real and personal to and amongst the persons receiving or entitled to the income thereof immediately prior to such death, by virtue of the previous clauses of this my will,” etc. One of the testator’s sons, Charles D. Freeman, died testate, leaving to survive him a widow, Augusta Freeman, and four children. The fourth clause of the will of the said Charles D. Freeman is in these words: “I give and devise and bequeath all my real and personal estate also that interest in my father’s estate over which I have power of appointment to my wife to take and use same and the net income thereof during all the term of her natural life without giving security as life tenant thereof.” The wife of Charles D. Freeman died about six years after his death. Henry B. Freeman, one of the children of Charles D. Freeman, died about ten years after his father, having devised and bequeathed all of his estate to his wife, Anna Dimond Freeman, who now claims the share of the income of the trust estate to which her husband would be entitled if living— that is, one-fourth of one-sixth of the income as long as the last survivor of the children of Henry G. Freeman lives. The surviving children of Charles D. Freeman deny the right of the widow of their brother, Henry B. Freeman, to participate in the distribution of the estate, and contend that Henry B. Freeman did not fall within the description child or children then living,” and, hence, was not within the class who could take under the will of Henry G. Freeman; that if, under the will of Henry G. Freeman and the appointment by Charles D. Freeman in his will, Henry B. Freeman took a remainder, such remainder was contingent on the death of Augusta Freeman, widow of Charles D., during the life of the last surviving child of Henry G. Freeman, until which time the remainder could not vest, and that as Henry B. Freeman had been dead for several years, no estate in the income ever vested in him and he had no interest in the estate to bequeath to the petitioner; that the appointment by Charles D. Freeman, in the fourth clause of his will, was valid as to the personal estate, and gave an absolute property therein to his widow, Augusta Freeman, and, therefore, the widow of Henry B. Freeman had no interest in the income therefrom. Two material questions arise: (1) Did a remainder in the income of Henry G. Freeman’s estate vest in his grandchildren under his will? (2) Did the power of appointment, exercised by Charles D. Freeman, vest in his widow, Augusta, an absolute estate in that part of the income derived from personalty? The intention of Henry G. Freeman is not obscurely expressed in his will. His object was to create a trust as to the income of his estate as long as any one of his children survived, and to limit the control of the share of any one of the children to an appointment by will in favor of a legatee who was “of kin” to such child. There was a recognition of the fact that the income would continue to accrue until the death of the last survivor of the children; hence, the provision of the will granting a power of appointment to each of the children as to the income accruing under the trust after the death of such child, and as there might be an omission on the part of any one of the children to appoint under this power, provision was made for the grandchildren or issue of such grandchildren. It is a familiar doctrine that the law favors vested rather than contingent estates, and this is specially so where the application of a contrary rule would work an intestacy. The rule applies also to remainders: “A remainder is always to be considered vested rather than contingent if the words of the will creating it are capable of such construction:” Chew’s Appeal, 37 Pa. 23; Siddall’s Estate, 180 Pa. 127. The interest vests immediately and the enjoyment only is postponed. In the absence of an expressed contrary intention a legacy bequeathed in default of appointment, vests in the legatee on the death'of the testator, subject to be divested by the exercise of the power of appointment: 4 Kent’s Com., 324; Fearne on Remainders, 226; Perry on Trusts, sec. 250; Cunningham v. Moody, 1 Vesey, 174. This is so because the power of appointment does not create an estate, nor hold it in abeyance. Its effect is to divest an estate which, but for the exercise of the power, would remain in the devisee or legatee. The will under consideration does not disclose afi intention inconsistent with this principle. In the event of the death of any one of the children, his share was to go to the child or children of such deceased son or daughter, or to the issue of any child or children of such son or daughter, subject only to the exercise of the power of appointment. If there be no appointment the whole interest passes to the grandchild or his issue. The full exercise of the power would divest the estate, but it could be defeated in no other way. Charles D. Freeman exercised the power of appointment, in part, by bequeathing the interest in his father’s estate to his wife, to use the same and the income thereof during her natural life. This did not dispose of the whole estate. The bequest gave to the widow as much of the income as became payable during her life, and the remainder thereof passed to the children of Charles D. Freeman, under the will of Henry G. Freeman. As much of the estate bequeathed to the grandchildren under the latter will as was not disposed of by Charles D. Freeman under the power, remained vested in his children, and is distributable according to the provisions of the will of Flenry G. Freeman. Charles D. Freeman’s bequest to his widow was in express terms for her natural life as life tenant, and disposed of the net income payable under his father’s will. These are plain words and leave no doubt as to the character of the estate given to his widow. Other provisions in his will furnish sidelights in confirmation of this view.

It is contended, however, that the decree cannot be sustained because a gift of personal property for fife will vest in the legatee an absolute interest in the subject of the bequest when no trust is interposed or there is no bequest over, and this is said to be a rule of law and applicable here because the income bequeathed by Henry G. Freeman arises in part from personal estate. Because of this fact it is claimed that the appointment to the widow of Charles D. Freeman gave her an absolute estate in so much of the income as was derived from personal property. It cannot properly be said to be a rule of law that a bequest of personalty for life gives to the first taker an absolute title to the property even where there is an express power to consume, sell and dispose of the subject of the bequest. The general rule that an absolute title is granted is not a rule of law but one of construction to aid in ascertaining the intention of the testator. Where a different intention is apparent the rule does not apply: Tyson’s Estate, 191 Pa. 218; Zimmerman’s Estate, 23 Pa. Superior Ct. 130; and where the gift for life blends real and personal estate, the presumption is that the testator intended to give a life estate only in the personalty: Drennan’s Appeal, 118 Pa. 176. This is not a conclusive presumption, to be sure, and it may be overcome by other provisions of the will, but there is nothing in the will of Henry G. Freeman which excepts it from the application of this presumption. The cases relied on by the appellant are .of a class in which there appeared, from the terms of the will, an intention that the corpus of the estate should go to the legatee. A gift of property for life which would necessarily be consumed or worn out in its use or as to which there was an unrestricted power of disposal as the legatee saw fit, or to use as the legatee might deem best for his own advantage, carries with it an absolute title because the language of the testator implies that that was what he intended to give. Having regard to the expressed intention of the testator we think it clear that Augusta Freeman took a life estate only under the will of Charles D. Freeman, and that as to the remainder not disposed of by the power of appointment, the title is in the children of Charles D. Freeman and the legatee of Henry B. Freeman. It follows that the widow of Henry B. Freeman is entitled to one-fourth of one-sixth of the income arising under the will of Henry G. Freeman.

The decree is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Freeman’s Estate
    (No. 2.)
    Argued Oct. 8, 1907.
    Appeal, No. 264, Oct. T., 1906, by Marion F. Wills, from decree-of O. C. Phila Co., Jan. T., 1881, No. 228, directing payment of income in Estate of Henry G. Freeman, deceased.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.

      February 28, 1908:
   Opinion by

Henderson, J.,

The appeal in this case raises the same question determined in the appeal of Isobel F. Frost, in which an opinion was this day filed, ante, p. 185.

For the reasons given in the latter appeal, the decree here complained of is affirmed.


author: Orlad y, J.,

text:
    Robinson’s Estate.

      Will — Legacies—Interest—Annuity—Trusts and trustees.

    The rule that interest does not begin to run on a legacy until a year after the testator’s death, does not apply, where a testator has stood in loco parentis to a grandniece by supporting and maintaining her for several years prior to his death, and where he has given a legacy to a trustee to pay to the grandniece the net income therefrom quarterly during her minority, and at age the principal, and the testator names the same person to act as trustee and guardian of the legatee.
    A person in loco parentis to a child, is a person who means to put himself in the situation of a lawful father of the child with reference to the father’s office and duty of making provision for the child.
    Argued Oct. 9, 1907.
    Appeal, No. 28, Oct. T., 1907, by Alexander Holland, from decree of O. C. Phila. Co., Oct. T., 1905, No. 400, awarding distribution of a fund in estate of J. G. Robinson, deceased.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Petition for decree to pay over money.
    The opinion of the Superior Court states the case.
    The court in an opinion by Lamorelle, J., entered the following decree:
    And now, January 12, 1907, the above cause having been heard on petition and answer, it is, on motion of Peirce Me- -' cutchen, attorney for petitioner, ordered and decreed that the prayer of the petition of the Pennsylvania company for insurance on lives and granting annuities, filed June 16, 1906, be granted; and, in accordance with said prayer, the fund of $1,050 paid into court by Alexander Holland on June 5, 1906, is hereby awarded and directed to be paid to the petitioner, the said Pennsylvania company for insurance on lives and granting annuities, trustee for Edith Robinson, as the party legally entitled to receive the same.

      Error assigned was the decree of the court.

      J. S. Freeman, for appellant.
    — Interest did not run from testator’s death: Brown’s Est., 190 Pa. 464; Eyre v. Golding, 5 Binn. 472; Hilyard’s Est., 5 W. & S. 30; Huston’s App., 9 Watts, 472; Bowman’s App., 34 Pa. 19; Leech’s Est., 44 Pa. 140; Dewart’s App., 70 Pa. 403; Page’s App., 71 Pa. 402; Phillips’s Est., 133 Pa. 426; Eichelberger’s Est., 170 Pa. 242; Gill’s App., 2 Pa. 221; Winebrenner’s App., 3 Grant, 169; Townsend’s App., 106 Pa. 268; Flickwir’s Est., 136 Pa. 374.

      Peirce Mecutchen, with him Henry S. Borneman, for appellee.
    — The legacy draws interest from the testator’s death, because it is a bequest of income to the cestui que trust “ quarterly during her minority,” and is, therefore, within the spirit and reason of the cases which hold that a legacy of the income of a trust fund given to one “for life” entitles the legatee to interest on that fund from the testator’s death: Eyre v. Golding, 5 Binn. 472; Hilyard’s Est., 5 W. & S. 30; Flickwir’s Est., 136 Pa. 374; Mackay’s Est., 107 Cal. 303 (40 Pac. Repr. 558).
    By the provisions of the will itself, and especially when those provisions are taken in connection with the relations existing between the testator and the beneficiary, Edith Robinson, the testator’s intention was clearly manifest that this legacy was given for the maintenance of the cestui que trust, which intention of itself is sufficient to make the legacy carry interest from the testator’s death: Townsend’s App., 106 Pa. 268.
    By the provisions of the will itself, and especially when those provisions are taken in connection with the relations existing between the testator and the beneficiary, as they appear from the pleadings in this case, the testator stood in loco parentis to the beneficiary and this fact establishes the legatee’s right to interest from the testator’s death: Bitzer v. Hahn, 14 S. & R. 232; Cooper v. Scott, 62 Pa. 139; Seibert’s App., 19 Pa. 49; Powys v. Mansfield, 3 Mylne & Cr. 359.
    February 28, 1908:
   Opinion by

Orlad y, J.,

The testator bequeathed to the appellee the sum of $10,000 upon the following conditions: “In trust, to invest the same and keep the same invested in good dividend paying securities, and to pay the net income thereof quarterly to Edith Robinson, daughter of C. H. Robinson, deceased, of the city of Philadelphia, during her minority, or until she shall arrive at the age of twenty-one years, at which time she is to receive the said principal sum of ten thousand dollars and any accumulations of income thereof.”

The controversy is between Edith Robinson, who (acting through her trustee, who was also named by the testator as her guardian) claims the sum of $1,050 as unpaid interest on the legacy from the date of the testator’s death. Charles H. Robinson, the father of Edith, was a nephew of the testator, and Edith Robinson was sixteen years of age when the testator died, July 12, 1904. Her mother died prior to 1896, during which year her father also died, and Edith Robinson, an only daughter, was the only known person related to the testator by consanguinity. In 1892, when this claimant was but four years of age, she was placed by her father in a home in New York city on account of his inability to maintain her. In 1894 the testator evidenced his interest in his grandniece by tracing her to the home, and he thereafter provided for her maintenance there, and also in private families, by paying for her boarding, clothing, physicians’ bills, as well as making her special presents on holiday occasions and providing for her vacation expenses to the time of his death. Whilst this maintenance was not obligatory on him, yet, whatever the inducing cause or motive actuating this concern for his grandniece may have been, it must be taken as clearly established that he was personally interested in her welfare, and in both his and in her mind such maintenance was her only source of support. These facts are particularly set out in the bill and are not distinctly denied in the answer.

The bequest provides for the “payment quarterly during her minority of the income,” and in the light of her helpless and dependent situation, the testator’s intention is manifest to provide for her wants as he had done in his lifetime. The will speaks from his death, and to take from her the interest' for the year following his death, would deprive her of that much of the income which is included in the term “quarterly during her minority.” The rule undoubtedly is that pecuniary legaciés are not payable until a year after the testator’s death, and in the meantime do not bear interest, but to this there are some well-recognized exceptions, such as a legacy by a parent to his child or by one in loco parentis, by way of maintenance, when the possession of the principal is deferred. Where interest in the nature of an annuity is given, if by implication from the terms of the instrument, the legacy is given for support: Townsend’s Appeal, 106 Pa. 268; 2 Redfield on Wills, 474; Theobald on Wills, 189; 2 Williams on Executors (7th Am. ed.), 742; 18 Am. & Eng. Ency. of Law (2d ed.), 798.

The proper definition of a person in loco parentis to a child, is a person who means to put himself in the situation of a lawful father of the child with reference to the father’s office and duty of making provision for the child: 2 Williams on Executors, 652; Seibert’s Appeal, 19 Pa. 49; Cooper v. Scott, 62 Pa. 139.

The relations between the testator and his grandniece which were voluntarily created by him, and the provision for quarterly payment during her minority of the whole income of the fund, as well as the naming of the same person to act as trustee of the fund and as her guardian, clearly indicate his intention to continue after his death the same system and provision for her maintenance which he had established and continued for a number of years prior to his death.

The decree of the orphans’ court is affirmed.


author: Orlady, J.,

text:
    Morse v. Maurer, Appellant.

      Contracts — Performance—Illegal contract — Elevator.
    Where a contractor for building an elevator has fully performed the contract according to its terms, the purchaser cannot object to payment therefor, because the work as finished did not meet the approval of the public authorities, and, as a whole, was in violation of law.
    In such a case the fact that it will be necessary for the purchaser to expend some additional money in making the shaft or inclosed part of the elevator conform to the requirements of the building laws has nothing to do with the contractor’s right to recover for the work which he had done.
    Argued Oct. 9, 1907.
    Appeal, No. 60, Oct. T., 1907, by defendant, from order of C. P. No. 2, Phila. Co., Dec. T., 1906, No. 2,939, making absolute rule for judgment for want o’f a sufficient affidavit of defense in case of Morse, Williams & Co. v. D. Maurer & Son Co.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for price of a freight elevator.
    The defendant filed an affidavit of defense, the material portions of which were as follows:
    That during the summer and early fall of the year 1906, the defendant was erecting and constructing for its own occupancy an entirely new factory building, three stories high, at No. 331 North Eighth street, in the city of Philadelphia. That for the purpose of its business it desired to have placed in the said building a freight elevator, and for that purpose invited proposals from various concerns in that line of business, among others the plaintiff corporation; that in due course, to wit: on or about September 14, 1906, the plaintiff submitted proposals to place such elevator, which proposal was accepted by the defendant, béing the proposal and acceptance referred to in the statement of claim, and on which this action is brought. That thereupon, the plaintiff, knowing from personal inspection, that the building was entirely new, on October 1, 1906, applied to the bureau of building inspection of the city of Philadelphia for and was granted a permit to place an elevator, not in a new, but in an “old hatch;” that this application was a fraud and in violation of the acts of assembly, particularly the Act of April 25,1903, P. L. 304, etc., for the reasons hereinafter set forth.
    That thereupon the plaintiff proceeded to place the said elevator in the building aforesaid, and when finished was on November 20, 1906, inspected and condemned by the bureau of building inspection as an illegal and dangerous elevator, in that being a new and not an old shaft in a factory building, it was required by the fourth section of the act hereinbefore referred to, to be inclosed between the floor and ceilings of each story in suitable walls of brick, or with a suitable framework of iron or burnt clay filling, or of such other fireproof material and form of construction as may be approved by the bureau of building inspection, excepting that the inclosure walls, required by said section in any fireproof buildings used as warehouses or factories shall be of brick; and the said building No. 331 North Eighth street was a building of such a character. That the elevator shaft in the said building was not inclosed as required by the act as above set forth, nor inclosed in any way, but that hatch openings were provided with automatic hatch doors only. That the said act of assembly permitted the latter construction only in buildings existing at the time of its passage, and it was to obtain the benefit of such-permission that the plaintiff at the time it made application for and received a permit as set forth in the “First” paragraph of this affidavit, fraudulently misrepresented to the bureau of building inspection that the hatch was an old one.
    That by reason of the condemnation by the bureau of building inspection aforesaid, the defendant will be put to an expense of $160, and perhaps more, to have the shaft and openings reconstructed and the shaft inclosed to make it conform to law, as it was the duty of the plaintiff to do.
    That the deponent is advised and informed, and therefore avers, that the plaintiff having deceived the bureau of building inspection, and having erected a contrivance that was contrary to law, it is not entitled to recover anything in this action.

      February 28, 1908:
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      Frederick J. Knaus, for appellants.
    — There can be no recovery upon a contract based upon a violation of law: Mitchell v. Smith, 1 Binney, 110; Booth v. Hodson, 6 T. R. 405; Seidenbender v. Charles, 4 S. & R. 151; Swan v. Scott, 11 S. & R. 155; Holt v. Green, 73 Pa. 198.

      Harry E. Kohn, for appellee.
   Opinion by

Orlady, J.,

The plaintiffs, who were engaged in the construction and erection of elevators for buildings, submitted a written proposal to the defendant, dated September 14, 1906, containing specifications for an elevator to be installed in the defendant’s property, according to the description therein given, for the price of $425, payable on completion. The court below made absolute a rule for judgment, for want of a sufficient affidavit of defense, and the defendant’s contention is, that because the work as finished by the plaintiffs did not meet the approval of the public authorities, and that, because, the work as a whole was in violation of law, the plaintiff could not recover under his contract, under the authority of Swan v. Scott, 11 S. & R. 155; Holt v. Green, 73 Pa. 198; Johnson v. Hulings, 103 Pa. 498, and others which hold that courts will not lend their aid to the enforcement of an unlawful contract.

This position is untenable in the light of the record as presented to us. The written offer as made by the plaintiffs and accepted by the defendant embraced only such a construction and such appliances as are therein specifically described, and this is all for which the plaintiffs claim it is entitled to recover. The contract as made was a perfectly lawful one. Its full performance, according to the terms of the written offer, is undisputed. The fact that it will be necessary for the defendant to expend some additional money in making the shaft or inclosed part of ■ the elevator conform to the requirements of the building laws of the commonwealth has nothing to do with the plaintiff’s right to recover for the work that has been done. The defendant got precisely that for which he contracted, and if his contract was not broad enough to meet the exigencies of his business, or the requirements of the law, the plaintiff should not be penalized by the defendant’s omission to provide for the additional work. The machinery necessary to operate the elevator, with its timbered supports, might well be considered an entirely separate and independent matter of contract from building the surrounding walls; and was evidently so considered by the defendant, in that he did not combine the two elements in its construction.

The judgment is affirmed.


text:
    Suckling, Appellant, v. Most Excellent Assembly of the Artisans’ Order of Mutual Protection.

      Beneficial associations — Death benefits — Compliance with constitution and by-laws — Amendment of constitution and by-laws.

    A certificate of a beneficial association provided for the payment of $2,000 to the legal heirs of a member, named, “provided always nevertheless, that before his death he shall have fully complied with the charter, constitution, rules, by-laws and regulations of the order.” The original constitution provided for a payment of a death benefit of $2,000. Shortly after the date of the certificate, the constitution was so changed that thereafter the death benefits paid were only $1,000 to the heirs of a member. The member did not surrender his certificate, but continued to pay the same charges as theretofore, which were the same as were being paid by the other members, who were, under that amendment, entitled to only $1,000 death benefits. He never after the amendment paid the premiums which were required to place him in the rank of members who were entitled to receive $2,000 benefits. Held, that as the member’s certificate, which evidenced his contract, had incorporated in it “ the constitution, rules, by-laws and regulations of the order,” a lawful change in the constitution or by-laws worked a corresponding change in the contract binding on the member: Hale v. Equitable Aid Union, 168 Pa. 377; Hayes v. German Beneficial Union, ante, p. 142, distinguished; Chambers v. Knights of Maccabees, 200 Pa. 244, followed.
    Argued Dec. 13, 1906.
    Appeal, No. 222, Oct. T., 1906, by plaintiffs, from judgment of 0. P. No. 2, Phila. Co., March T., 1904, No. 2,093, for plaintiff on case stated in suit of John T. Suckling et al. v. The Most Excellent Assembly Artisans’ Order of Mutual Protection.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Case stated to determine liability for death benefits.
    From the case stated it appeared that on January 17, 1876, the defendant, a beneficial association, issued to John Suckling a beneficiary certificate which contained the following clauses:
    “Therefore this corporation doth hereby grant unto him this beneficiary certificate, pledging to pay to the legal heirs or other legal representatives of the said John Suckling, the sum of Two thousand Dollars, lawful money of the United States of America, to be paid within sixty days after due proof of his death.
    “Provided always nevertheless, that before his death he shall have fully complied with the Charter, Constitution, Rules, By-Laws and Regulations of the Order whether of the Most Excellent Assembly, The Excellent Assembly of his State, if such there be, or of the Subordinate Assembly of which he was a member and entitled to death benefits at the time of his death.”
    The original constitution provided that the death benefits should be $2,000 payable to the heirs or legal representatives of a deceased member. On February 10, 1876, the constitution was amended as to death benefits as follows:
    Sec. 3. “Upon the death of a member of the Order in good standing in his Subordinate Assembly his heirs or legal representatives shall be entitled to receive from the death benefit fund .of the Most Excellent Assembly, within sixty days from the date-that the Most Excellent Recorder shall receive due proof of his death, such amount as the Most Excellent Assembly shall determine from year to year, not less than $500.00, nor more than $2,000.00.”
    In accordance with the amendment resolutions were passed each year until 1890, fixing the amount at $1,000. In 1890 the constitution was further amended by classifying members, and members paying such premiums as entitled them to a death benefit of $1,000, were placed in the first class, and those paying premiums as would entitle them to death benefits of $2,000, in the second class.
    The case stated incorporated further facts, as follows:
    9. The said John Suckling knew of the various changes in the constitution above set forth, but never assented thereto, unless that fact be implied from the payments as herein set forth, and never surrendered his certificate upon which this suit is brought. In his subordinate assembly after 1890 he frequently protested against the changes thus made and against the said resolutions passed by the Most Excellent Assembly which also were known to him, and he never stated to which class after 1890 he wished to belong. From the time of the amendment of 1876 to that of 1890 he paid the same charges as theretofore, which were the same as were being paid by the other members who were, under that amendment and the resolution passed in pursuance thereof as above set forth, entitled only to $1,000 death benefits; and from and after 1890, he continued to pay the same dues as theretofore and was regarded as a -member of the first class. He also knew that he was carried on the books as a member of the first class, and charges paid by the subordinate assembly to which he belonged on that basis only, which was different from that paid for members of the second class.
    The court entered judgment for plaintiff on the case stated in the sum of $1,145. Plaintiff appealed.

      Error assigned was in entering judgment for the plaintiff for $1,145 on the case stated.

      Horace L. Henderson, with him Thomas J. Baldrige, for appellants.
    — The amendment of the laws, if applied against Suckling, were in derogation of the terms of his certificate, and the defendant could not, without Suckling’s consent, thus alter or modify his certificate: Hale v. Equitable Aid Union, 168 Pa. 377'; St. Patrick’s Male Beneficial Society v. McVey, 92 Pa. 510; Chambers v. Knights of Maccabees, 200 Pa. 244.
    February 28, 1908:
    The Hale case has since been cited or followed in numerous cases in which the power of amendment, though expressly reserved, has been held not to extend to the alterations of a contract contained in a certificate: Indemnity Co. v. Jarman, 104 Fed. Repr. 638; Supreme Council of American Legion of Honor v. Getz, 112 Fed. Repr. 119; Supreme Council of American Legion of Honor v. Jordan, 117 Ga. 808 (45 S. E. Repr. 33); Legion of Honor v. Black, 123 Fed. Repr. 650; Life Association v. Tuttle, 87 111. App. 309; Lanagan v. Legion of Honor, 174 N. Y. 266 (66 N. E. Repr. 932); Morton v. Supreme Council, 100 Mo. App. 76; Gaut v. Legion of Honor, 107 Tenn. 603 (64 S. W. Repr. 1070); Wuerfler v. Order of Druids, 116 Wis. 19 (92 N. W. Repr. 433); Newhall v. Legion of Honor, 181 Mass. Ill (63 N. E. Repr. 1).

      Francis Skunk Brown, with him Joseph T. Taylor and Alex. Simpson, Jr., for appellees.
    — Under the charter of incorporation the judgment below is clearly right: St. Patrick’s Male Beneficial Society v. McVey, 92 Pa. 510; Com. v. Equitable Ben. Assn., 137 Pa. 412; Masonic Aid Assn. v. Jones, 154 Pa. 99; Supreme Lodge K. of P. v. Knight, 117 Ind. 489 (20 N. E. Repr. 479).
    Plaintiffs’ ancestor was estopped, and they claiming only through him are also estopped from claiming more than f1,000. Moreover, the judgment below is right even if the certificate alone is to govern: Supreme Lodge v. Knight, 117 Ind. 489 (20 N. E. Repr. 479); Poultney v. Bachman, 31 Hun (N. Y.), 49; May v. N. Y. Safety Reserve Fund Society, 14 Daly (N. Y.), 389; Reynolds v. Order of Heptasophs, 10 Pa. Dist. Rep. 528; Chambers v. Knights of Maccabees, 200 Pa. 244.
   Opinion by

Head,J.,

In Hayes v. Beneficial Union, ante, p. 142, we considered at length some of the legal principles proper to be applied in the construction of beneficial certificates issued by societies like the appellee. What was there said we need not here repeat. Were the present case, in its facts, like that one, nought would remain but to enter the judgment contended for by the appellants in accordance with the doctrine there enunciated. But a careful study of both cases, in the light of the authorities, leads to the conclusion they are to be broadly distinguished. The distinction between them is essentially the same that led the Supreme Court to different conclusions in the cases of Hale v. Equitable Aid Union, 168 Pa. 377, and Chambers v. Knights of Maccabees, 200 Pa. 244.

It is to be remembered, in all such cases, that the member who purchases such certificate, thereafter occupies a dual relation towards his society. He ceases not to be a member, and in this relation he is bound, like every other member, by the obligation to obey the laws that may be, from time to time, duly ordained for the government of the society and its members. His refusal to do so may be punished in such reasonable and appropriate manner as the laws themselves may prescribe. But he also maintains a contractual relation, and his contractual rights, when once fixed and established, cannot afterwards be impaired or destroyed by any act merely of the other party, he not assenting. In other words the law will not presume that such contracting party, merely by the expression of his willingness to obey the by-laws of his society, has assented to the proposition that the penalty for a subsequent neglect or refusal to obey such laws, shall be the loss of his rights, under a contract which, in its terms, does not incorporate as a part of it or need in explanation or construction of it, such by-laws.

But the member who elects to become beneficial has, like every other person sui juris, an unlimited capacity to contract so long as the paramount law or established policy of the state be not contravened. If he choose to write in and as a part of his contract, that the benefits therein specified shall become due and payable only on condition that he shall have, down to the date of his death, “fully complied with the charter, constitution, rules, by-laws,” etc., there is no reason why he should not be bound thereby. The law will not aid him in enforcing his right and at the same time permit him to evade or refuse to perform the condition on which the right rests. This is precisely, as we view it, the situation of the present plaintiffs. The existence, in the body of the certificate, of the proviso from which we have just quoted, is the impassible barrier that separates the plaintiffs from the recovery they seek. This it is that distinguishes the present case from Hale v. Equitable Aid Union and Hayes v. German Beneficial Union, ante, p. 142, and classes it with Chambers v. Knights of Maccabees. Under the authority of the latter we must hold that the plaintiffs can recover only such sum as, after compliance with the Constitution and by-laws by their decedent, they would have the right 'to claim. Under the facts agreed upon in the case stated it clearly appears that such compliance on his part would have left him a member of what is called the first class of beneficiaries whose claims cannot exceed $1,000. The judgment entered by the learned court below is exactly responsive to the doctrine here indicated and the assignment of error must therefore be dismissed:

Judgment affirmed.


author: Head, J.,

text:
    Luntz v. Berry, Appellant.

      Sale — Contract—Refusal to accept goods — Agreement to reship goods— Bailment.

    Where a purchaser of goods refuses to accept them because they were not the goods ordered, and subsequently the seller offers them to the purchaser at a reduced price, which offer is rejected, and the purchaser then agrees to reship the goods, without notifying the seller of any charges for freight or storage, and the agreement to reship the goods is not carried out, and the goods are subsequently destroyed by fire while in the purchaser's possession, the seller has a right of action against the purchaser, and his measure of damages is not the reduced price at which the goods were offered to the purchaser, but the market value of the goods at the time the purchaser violated his agreement to reship them. In such a case the consideration for the agreement to reship was the obligation on the part of the purchaser as bailee to return the goods in compliance with the bailor's direction.
    Argued Oct. 9, 1907.
    Appeal, No. 3, Oct. T., 1907, by defendants, from judgment of C. P. No. 2, Phila. Co., June T., 1905, No. 479, on verdict for plaintiffs in case of Charles I. Luntz and H. Arenson, trading as Akron Junk & Metal Company, v. Edward Y. Berry and James C. Aikens, trading as Berry & Aikens.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit for goods sold and delivered. Before Wilt-bank, J.
    The facts appear by the opinion of the Superior Court.
    Defendant presented the following points, all of which were refused:
    1. The contract between the plaintiffs and defendants called for new kegs made up to contain liquids, such as cider, etc., and if the kegs shipped to the defendants were not new kegs, such as contracted for, defendants were not obliged to accept the same.
    2. The fact that defendants paid the freight and removed the kegs from the car and hauled them to their yard does not of itself constitute an acceptance of the delivery of the kegs.
    3. If upon examination and inspection of the kegs after they were brought to their establishment from the railroad car, the defendants found them not to be new kegs, but to be secondhand or old kegs, weather-beaten and worn, with rusty hoops and not suitable for cider and other liquids, there was no obligation on defendants’ part to reload the same on the oars and return them to the plaintiffs, but simply to notify them that the kegs were not according to their contract, and that defendants would hold them subject to their order and risk.
    4. After giving such notice to the plaintiffs, the defendants held the kegs simply as bailees for the plaintiffs, and were only required to exercise ordinary and reasonable care to protect them from injury or loss.

      5. The defendants being expressly authorized by the plaintiffs to return the kegs if unsold at a certain price, became bailees of the kegs only, and not purchasers thereof.
    6. Even if there was an acceptance of delivery of the kegs by the defendants, the subsequent letters which passed between the plaintiffs and the defendants effected a rescission by mutual consent of the original contract of sale, and the kegs therefore remained in defendants’ possession as bailees only, and not as purchasers.
    7. The defendants being bailees and not purchasers of the kegs shipped by plaintiffs, there can be no recovery by the plaintiffs in this action, except for the market value of such kegs as were used and disposed of by defendants as samples.
    8. As bailees of the kegs for the plaintiffs, the defendants had a lien thereon for any expenses they were required to incur by reason of such possession, including the freight charges and the reasonable cost of hauling and labor expended thereon, etc.
    9. This lien also included reasonable storage charges by defendants for such period of time as the plaintiffs permitted the kegs to remain in defendants’ establishment, after being notified by defendants they were held there subject to their order.
    10. The law imposed no duty on the defendants to give up their possession of the kegs or reload them on the railroad cars, as requested by plaintiffs, until their reasonable expenses incurred as aforesaid were paid.
    11. The fact that defendants continued to hold the kegs as a lien for said charges, in no way changed the defendants’ position from that of bailees to that of purchasers.
    12. The fact that the kegs were destroyed by fire while in defendants’ establishment would not change the transaction from a bailment to a sale, and no liability is imposed upon the defendants merely from this fact.
    13. The defendants’ disposal of some of the kegs as samples in their effort to find a market for the carload, as requested by the plaintiffs, does not constitute an acceptance of delivery of the whole shipment on the part of the defendants.
    14. The kegs received by the defendants being of a different and inferior kind than the contract of sale called for, even if they accepted the kegs, or any of them, defendants would only be liable for the market value of the kegs so used, and not for the contract price.
    15. Against the amount of the market value of the kegs used by them as samples or otherwise, the defendants are entitled to set off the items of freight charges and other reasonable expenses necessarily incurred by them in hauling the kegs, storing same and endeavoring to fit them for sale.
    16. If the jury finds that the amount of such reasonable charges and expenses incurred by the defendants exceeds the market value of the kegs used by the defendants as samples or otherwise, they should render a verdict for defendants with a certificate in their favor for such excess or difference.
    17. Under all the evidence in this ease, the verdict should be for the defendants.
    Verdict and judgment for plaintiff for $252. Defendants appealed.

      Errors assigned among others were (6-22) above instructions, quoting them.

      Fred Taylor Pusey, for appellants.
    — As soon as defendants inspected the goods they promptly notified the plaintiffs they could not accept them, and would hold them “subject to their order.” This was all that was necessary: Dailey v. Green, 15 Pa. 118; Leechburg F. & M. Co. v. Jennings, 145 Pa. 559; Holt v. Pie, 120 Pa. 425.
    On March 22, plaintiffs still exercising their authority and direction over the goods, advised defendants if they were unwilling to buy them at fifty cents to load them for shipment elsewhere. The bailment still existed: McCullough v. Porter,. 4 W. & S. 177; Becker v. Smith, 59 Pa. 469; Brown Bros. v. Billington, 163 Pa. 76.
    A bailee who incurs expenses in connection with the thing bailed has a lien on the property for these expenses, even in the absence of a contract with the owner: Meyers v. Bratespiece, 174 Pa. 119; Hoover v. Epler, 52 Pa. 522; Mathias v. Sellers, 86 Pa. 486; Brown v. Dempsey, 95 Pa. 243.

      February 28, 1908:

      Allen C. Middleton, with him C. Wilfred Conard, for appellee,
    cited: Cooper v. Altimus, 62 Pa. 486; Hoffman v. Bloomsburg, etc., R. R. Co., 157 Pa. 174; King v. International Pub. Co., 3 Pa. Superior Ct. 329; White v. Metropolitan Life Ins. Co., 22 Pa. Superior Ct. 501; Flegal v. Hoover, 156 Pa. 276.
   Opinion by

Head, J.,

It is not denied that in December, 1904, the plaintiffs and defendants entered into a contract, by the terms of which the former undertook to sell and deliver, f. o. b. cars Philadelphia, a carload of “new kegs” at the price of sixty-five cents per keg, and the latter in turn agreed to receive and pay for them. Nor that, in pursuance of that contract, a carload of kegs arrived in Philadelphia about January 26, the freight, however, not having been prepaid. Nor that the defendants paid the freight, unloaded the car and had the kegs hauled to their yards, where they were counted and inspected. By their letter of January 27 the defendants gave to the plaintiffs a detailed account of the results of this inspection; advised them that the kegs were not “new kegs” and could not be used as such, and that they would be held subject to plaintiffs’ orders. Of course this attitude, on the part of the defendants, could be justified only by their ability to establish, as a fact, that the kegs shipped were not the kegs bought, that is to say, “new kegs.” The plaintiffs then had two courses open to them, either one of which they could lawfully and logically pursue. If they chose to stand in affirmance of the proposition that the contract had been fully and fairly performed on their part, then the only thing remaining for them to do was to enforce the payment of the contract price, because on this theory the title to the kegs had passed to the defendants and the plaintiffs had no further interest in or right of control over their future disposition. Or if they did not choose to assume the burden that would thus be cast on them, the plaintiffs could acquiesce in the attitude of rescission adopted by the defendants, in which event the title to and right of control over the property would remain in them; the contract, as to that carload of kegs, would be at an end, and the defendants would owe no part of the contract price. It would seem as if the plaintiffs, in effect at least, adopted the latter course, for a considerable correspondence ensued which apparently had for its object the ascertainment of the best price at which the kegs could be sold by the plaintiffs, either to the defendants or to some other party. This culminated in the letter from plaintiffs of March 22, in which they offer the kegs to defendants at fifty cents each, and in which they direct, in case that offer be refused, that the kegs be loaded on a car of the Pennsylvania Railroad Company, to whose agent shipping instructions would be furnished. To this defendants replied on March 24 declining to purchase, but agreeing they would ship, as directed, on Wednesday, March 29, unless meantime they received further instructions. They received no further orders, but did not ship the kegs as they had been directed and had agreed to do.

Meantime defendants prepared a statement of account charging plaintiffs with freight paid, haulage, storage, etc., and crediting them with the amount received from “ 100 kegs sent out as samples at 35c.” and showing a balance due defendants of $47.84. For this they drew a sight draft on plaintiffs and sent it, with statement attached, to a bank in Akron, Ohio, where the plaintiffs had their home office. Payment was refused and the draft was returned. No further communication passed between the parties and no change in the status occurred until April 26, 1905, when, as the result of a fire at defendants’ yards, the kegs were destroyed.

As this action was brought the plaintiffs rested their claim on the original contract and declared for the price of 544 kegs at 65c. each “sold and delivered pursuant to said contract and relying thereon.” At the trial, after the completion of the case in chief, the defendants moved for a compulsory nonsuit. Pending this motion, plaintiffs asked and obtained leave of the court to so amend their pleadings as to make their claim rest on the breach of the alleged contract created by their proposition of March 22, accepted in defendants’ letter of March 24. No question as to the propriety of allowing the amendment is raised by this record and we need not discuss it. The trial proceeded under the amended pleadings, and at its conclusion the learned court below declared, as matter of law, that defendants were liable for their breach of their undertaking to reship the kegs as directed, and that the measure of damages (as we learn not from the charge itself, but from the uncontradicted statements in the appellants’ paper-book) would be the price demanded by plaintiffs in their proposition of March 22, viz.: fifty cents per keg. This conclusion was probably reached on the theory that the subsequent refusal of the defendants to carry out the proposition which they did accept, was tantamount, in law, to an acceptance of the alternative proposition which they had expressly rejected.

We are unable to assent to the soundness of the conclusion as to the measure of damages. The plaintiffs’ action sounds in contract. If they recover at all, under the present state of the pleadings, it must be for the breach of an obligation voluntarily undertaken, as a matter of contract, by the defendants. Their claim must rest on a failure to perform something the defendants had undertaken to do. Now the plaintiffs’ letter of March 22 advanced a specific offer to sell the kegs at fifty cents per keg. This offer was just as definitely rejected. There was then no contract, assented to by both parties, for a sale and purchase of the kegs. That offer then became as if never made. But the letter contained a second and alternative offer, to be considered after the rejection of the first. It was accepted and a contract was thus created. Performance of that contract imposed upon the defendants the single obligation to reship the kegs as directed. They failed to perform as' they agreed to do, and later exact performance became impossible by the destruction of the property. Had the plaintiffs received their kegs, they would have no cause to complain — the requirements of the contract, mutually assented to, would have been fully met. Under such circumstances, the nfarket value of the property, at the time it should have been shipped, would be compensation, and hence the measure of their recovery. This might be more or less than fifty cents per keg. The unaccepted offer to sell at that price did not conclude either party.

But, it is argued, the. defendants’ promise to ship was but voluntary, without consideration and, therefore, not binding. We cannot think so. Even regarding them as bailees, the law imposed upon them the obligation' to dispose of the bailed property according to the instructions of the bailor, and this obligation was a sufficient consideration for the promise to perform it. Again, it is urged the bailee had a right of lien on the property for moneys expended on it at the instance or for the benefit of the bailor, and could rightfully retain possession until such moneys were paid. We may grant the existence of the principle as to' labor or money expended “at the request of the owner or under circumstances from which his assent can be reasonably implied:” Meyers & Bro. v. Bratespiece, 174 Pa. 119. It would follow from this that the bailed property could not be adversely taken from the bailee without paying, or offering to pay, such a claim, if he insisted on holding possession to secure his claim. But we can see nothing in the principle that would prevent a bailee from voluntarily surrendering the property, waiving his right to lien, and accepting the personal security of the bailor for his debt.

In the present case the defendants expressly agreed to ship the kegs as directed. They did not do so. They never notified plaintiffs they would not do so, or that they would continue to hold the property until their claim was paid. True, they drew a draft on plaintiffs which was returned unpaid. But it was not drawn until the very day the kegs should have been shipped. It was not accompanied with any notice that a lien on the kegs was claimed to secure payment and that possession would be retained until payment was made. Under these circumstances the defendants were not in a position to ask the court to say, as matter of law, that their default, in refusing to ship the kegs as they agreed to do, was condoned by the fact that there was some money due them, for freight, etc., for which, as bailees, they might have claimed a lien on the bailed property. The judgment must therefore be reversed so that the cause may be tried according to the principles herein indicated.

Judgment reversed and a venire facias de novo awarded.


author: Morrison, J.,

text:
    Vansciver v. Churchill, Appellants.

      Practice, C. P. — Trial—Continuance—Discretion of court — Appeals.
    The refusal to continue a cause is -within the discretion of the trial court, and if no abuse of discretion appears, such refusal is not assignable as error.

      Mechanic’s lien — Discharge of lien by entry of security — Pleading— Issue — Act of June 4,1901, sec. 25, P. L. 431.
    In proceedings under the Act of June 4, 1901, sec. 25, P. L. 431, providing for the discharge of a mechanic’s lien upon entering security, the issue to be tried is made by the lien filed, and the defense set up in the petition to enter security. In such a case a lien stands in place of a scire facias, as no writ of scire facias can issue after the discharge of the lien; the petition sets up the defense; therefore the case may be tried on the merits.
    In proceedings under the Act of June 4, 1901, sec. 25, P. L. 431, a mere formal amendment which does not change the cause of action nor increase the liability of the surety, may be allowed without discharging the surety.

      Mechanic’s liens — Covenant against liens — Fraudulent representations.

    A covenant against liens procured by false and fraudulent representations made at the very time the contract was executed will not be enforced. Thus a covenant against liens will not be enforced where it appears that at the time the contract was made the owner falsely represented to the contractor that there was only one mortgage on the property, whereas in fact there were two, and that he could set aside as security to the contractor, three properties, whereas in fact he did not own or control such properties. In such a case the contractor will not be deemed to have waived the fraud because he received payments after he had discovered the fraud.

      Mechanic’s lien — Contract with owner — Bill of particulars.

    In case of a contract with an owner no bill of particulars need be attached to a mechanic’s lien.
    A complaint that a mechanic’s lien is bad because a bill of particulars was not attached to the lien should be made by a motion to strike off the lien. It is too late to raise this question after giving security, and having the lien discharged under the provisions of the Act of June 4, 1901, P. L. 431.
    Argued Oct. 10, 1907.
    Appeal, No. 45, Oct. T., 1907, by defendant, from judgment of C. P. No. 5, Phila. Co., Dec.- T., 1905, No. 6,336, M. L. D., on verdict for plaintiff in case of Elwood Vansciver v. Frank P. Churchill, reputed owner and contractor, and the Empire State Surety Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Issue under the act of June 4, 1901, to determine the validity of a mechanic’s lien. Before Ralston, J.
    The court charged as follows:
    Counsel have stated to you very clearly their respective views of the evidence in this case, as to the amount, etc. I shall not go over that again. Under ordinary circumstances, in this case, the plaintiff doing the work would have a lien upon the building, and, therefore, he would be protected. Under his contract, he renounced the right to lien. Now what did he get in return? (Instead of having his right to lien, there was a special stipulation in the contract that three houses should be set apart to secure him.) Consequently, he claims that when he gave up his right to lien, it was on account of that special stipulation in the contract, and that he was induced to sign that contract by the representations of Mr. Churchill, which he alleges were false and fraudulent. He, therefore, claims that he was induced to enter into this contract by the false statement that Mr. Churchill was the owner of these houses; that he was not the owner and could not carry out the agreement which he had made. Now, if you should find that he was induced by false representations to enter into this contract waiving his right to lien, then he has a right to disregard that contract altogether and resort back to his lien which he would have had in the absence of the contract. Exception to defendant.
    Verdict and judgment for plaintiff for $110. Defendant appealed.

      Errors assigned (1-7) are fully stated in the opinion of the Superior Court.

      Ormond Rambo, with him Wayne P. Rambo, for appellant. — ■
    At most, Churchill can be convicted only on breach of contract: Long v. Caffrey, 93 Pa. 526; Purvis v. Brumbaugh, 8 Pa. Superior Ct. 292.
    February 28, 1908:
    Plaintiff has waived any alleged right to set aside the contract, and affirmed his contract after full knowledge: Howard v. Turner, 155 Pa. 349; Williams v. Thomas, 7 Kulp, 371; Hilliard v. Carving Co., 173 Pa. 1.
    No material issue of fact was raised and no issue had been framed at the time of the trial.
    Claimant cannot avoid his contract filed of record after the rights of third parties have intervened: Hollingsworth on Contracts, p. 186; Sinclair v. Healy, 40 Pa. 417; Dettra v. Kestner, 147 Pa. 566.
    A claim simply for labor performed and furnished, or for materials without any specification of the kind or quantity, or time when furnished, is defective: Graham v. McLean & Ben-nor Machine Co., 1 Chester County Rep. 73; Kauffman v. Rodgers, 7 Lane. L. R. 348; Wolfe v. Keeley, 9 Pa. Dist. Rep. 515; Heron v. Robinson, 2 Pars. 248; Lauman’s Appeal, 8 Pa. 473; Clark v. Richardson, 4 W. N. C. 559; Mercer County v. Coovert, 6 W. & S. 70; Yohn v. Shumaker, 5 Pa. Superior Ct. 320; Green v. Boyd, 13 Pa. Superior Ct. 651.
    The surety is discharged by the amendment.

      G. Von Phul Jones, for appellee.
    — Amendments of the kind allowed in this case, which do not change the cause of action, have been held not assignable as error: Maus v. Maus, 5 Watts, 315; Davis v. Church, 1 W. & S. 24Ó; Ballman v. Heron, 169 Pa. 510; Krumbhaar v. Birch, 83 Pa. 426; Harding v. Lloyd, 3 Pa. Superior Ct. 293.
    It was not error to amend the lien before the trial: Ins. Co. v. Simmons, 30 Pa. 299.
    The lien did not require a bill of particulars: Young v. Lyman, 9 Pa. 449.
    The issue was properly made: Wyss-Thalman v. Beaver Valley Brewing Co., 216 Pa. 435.
   Opinion by

Morrison, J.,

In the court below the plaintiff recovered a verdict against the defendants for $110 for work and material alleged to have been furnished by the plaintiff in the construction of a certain building described in the lien; judgment having been entered on the verdict, defendants appealed. Upon the evidence submitted the jury found the merits of the case with the plaintiff, and we think there is sufficient evidence in the record to sustain the verdict.

The first assignment of error is to the refusal of the court, to strike the above case from the trial list, because the same is not at issue, because as a matter of law, the lien is invalid upon its face, and because no material issue of facts has arisen upon the record.” This is practically a motion for a continuance, except in so far as it alleges that no material issue of facts has arisen upon the record. As the refusal to continue it is in the discretion of the court and no abuse of discretion appearing, it is not assignable as error: Folker and Another, administrators of Huggins v. Satterlee, 2 Rawle, 213; Insurance Co. v. Simmons, 30 Pa. 299; Pringle v. Pringle, 59 Pa. 281. The latter case decides that ordering the issue to be put at the head of the trial list and to be tried upon its merits without pleadings, was within the sound discretion of the court below and not rightfully the subject of review on appeal.

As to so much of the first assignment as refers to the invalidity of the lien upon its face and the want of an issue of facts, little need' be said. The plaintiff had filed his lien, plainly stating therein the amount of his claim, a description of the property and that the claim was the reasonable price and value of the work and materials furnished, etc. He also averred that the covenant made in the attached contract to the effect that no lien shall be filed against the said building is void and inoperative because said covenant was procured by false representations and fraudulent devices, setting out the representations and devices in detail. With the lien upon the record and the above averments contained therein, the owner and contractor presented his petition under sec. 25, Act of June 4, 1901, P. L. 431, which provides for a discharge of the lien upon the defendant presenting his petition setting forth his defense and of what it consists, and upon his entering approved security in double the amount claimed and probable costs; and thereafter the material disputed facts, if any, shall be tried by a jury, without further pleadings, with the same effect as if a writ of scire facias had duly issued upon said claim to recover the balance thereof; but the jury shall be sworn to try the issues between the claimant and the parties signing the bond, and verdict, judgment and execution shall follow as in an action commenced at law.

The above explains how the Empire State Surety Company came upon the record as defendant. It seems perfectly clear that on filing the petition and entering the bond, and the discharge of the lien by the court, the issue to be tried is made by the lien and the defense set up in the petition to enter security. Wyss-Thalman v. Beaver Valley Brewing Co., 216 Pa. 435, decides, as stated in the syllabus: “Where a scire facias sur mechanic’s lien is tried on the merits, the issue being made up by the writ, the affidavit of defense and the replication, the trial court cannot be convicted of error because it refuses to direct a formal plea to be entered before the jury is sworn upon a motion for that purpose.” In the present case the lien stood in place of a scire facias as no writ of scire facias could issue after the discharge of the lien. The petition set up the defense; therefore, the case could be tried on the merits.

In view of that decision, the twenty-fifth section of the act of 1901 and the condition of the record in the present case, we have no hesitation in dismissing the first and second assignments of error.

As to the averment in the second assignment that the amendment allowed by the court discharges the Empire State Surety Company from the liability upon its bond, we do not think there is much difficulty. The amendment allowed was purely formal and in no degree changed the cause of action or increased the liability of the surety company above what it ought to have anticipated from the contents of the original lien. Amendments of the character complained of in the second assignment may be made: Maus v. Maus, 5 Watts, 315; Schmidt v. Zeigler, 30 Pa. Superior Ct. 104; Davis v. Church, 1 W. & S. 240; Sec. 51. Act of June 4. 1901. P. L. 431.

The third, fourth, fifth and seventh assignments are to the charge of the court in refusing to give a binding instruction in favor of the defendants, and they raise substantially the same questions.

The sixth assignment is: “The learned court erred in overruling the objection of the Empire State Surety Company to the making absolute rule to amend the lien filed.” We have already disposed of this question in considering the second assignment and, therefore, the sixth assignment is not sustained.

We will now briefly consider the third, fourth, fifth and seventh assignments. The defendants did not properly raise any question as to the form of the lien, but claim (a) that the credits on the building operation had not been properly applied and that a smaller amount was due than that claimed; (b) that there was a covenant against liens and that the allegations of fraud in the procurement of the contract containing the covenant against liens, filed with the lien, were not sustained by the evidence; (c) that plaintiff could not repudiate the contract because he had sought an equitable remedy, by reason of its breach, which suit was dismissed for want of jurisdiction in equity and because there was a remedy at law. These were the issues actually tried and the jury found against the defendants on all of them. The question then arises, under the assignments last mentioned, did the court commit reversible error? The charge is very brief and it is all assigned for error. It called attention to the plaintiff’s contract with the defendant, waiving the right to a lien, and told the jury that if this contract was procured by false and fraudulent means then the plaintiff might disregard it and file and sustain his lien. We do not understand that there is any serious dispute, under the evidence, as to the amount of the verdict, if the plaintiff was entitled to recover at all.

The learned counsel for the defendants contends that there was not sufficient evidence to avoid the contract not to file liens, on account of fraud and deception. Upon this point, we think, the evidence was sufficient to carry the question to the jury. We will not take time and space to recite the evidence, but think there is sufficient in the record to warrant the jury in finding that the plaintiff was induced to enter into the contract against liens by false and fraudulent representations made by Churchill.

But the learned counsel for the defendants contends that, at most, there was only a mere breach of contract by Churchill and that this will not avoid the covenant against liens. In support of this proposition, he cites Long v. Caffrey, 93 Pa. 526. But that was a case where the mechanic stipulated in writing with the owner that he would not file a mechanic’s lien, and the owner stipulated that after the building was constructed he would insure it and assign the pohcy to secure the deferred payments to the builder. The Supr.eme Court held that the different parts of the contract, on that subject, are separate and independent covenants. That case is readily distinguishable from the present one. The mechanic was to wait until the building was completed for a portion of his money and he trusted the owner to insure the building and assign the pohcy. The principle in that case has no application to the question involved in the case under consideration. In it the jury evidently found that the plaintiff was induced to execute the covenant against hens by false and fraudulent representations made at the very time the contract was executed. Purvis and Co. v. Brumbaugh, 8 Pa. Superior Ct. 292, is also cited, but there was no fraud in that case; the contractor agreed not to file hens and the owner agreed to pay in installments and it was held that the failure to pay the installments did not relieve from the covenant not to file hens. This is very clear because it has never been held fraudulent for a man to fail to pay instahments falling due in the future, without more.

We are not without authority that a covenant against hens, procured by fraud, will not be enforced. One of these cases is Ballman v. Heron, 160 Pa. 377, where it is said: "If the contract is not made in good faith but is entered into for the purpose of misleading and so defrauding subcontractors and material men, it should be held invahd because of the fraud.” See same case, 169 Pa. 510; also Bohem & Bros. v. Seel, 185 Pa. 382; Harding and Dubois v. Lloyd, 3 Pa. Superior Ct. 293; Brown v. Eccles, 2 Pa. Superior Ct. 192.

There was evidence that Churchill falsefy stated to the plaintiff, at the time the contract was made, that each of the three properties to be set aside as security to the plaintiff was subject only to a mortgage of $1,600, while at that very time they were and remained subject to another mortgage of $25,000. In addition to this there was evidence that, under his agreements with other parties, Churchill did not own and control the said three properties so that he could set them aside as security to the plaintiff, as he agreed to do when he procured the covenant against liens. We think there is ample evidence to warrant the jury in finding that the contract against hens was void on account of the fraud practiced by Churchill which induced the plaintiff to execute it.

It is argued that the plaintiff waived his right to rescind the contract on the ground of fraud.' This the appellant says is shown in three ways: (a) the plaintiff received payment on account of the contract after knowledge of the facts upon which he relies to avoid it; (b) that plaintiff demanded the proceeds of the sale of the. three houses; (c) that with full knowledge of the facts, plaintiff filed a bill in equity asking for an accounting of the proceeds of the sale of the three houses. We fail to see how the plaintiff is prejudiced by receiving payments on account of his work and material furnished. Surely he had a right to demand and receive all of his money as fast as it became due. Moreover, it does not clearly appear that at the time plaintiff received payments under the contract, demanded the proceeds of the sale of the three houses, and filed his bill in equity, he was fully informed as to the true situation. Nor do we understand that plaintiff waived anything by insisting on the payment of the money due him out of the proceeds of the houses which had been disposed of contrary to Churchill’s agreement. It would seem that the fraud was not in failing to set aside the houses, so much as in representing that he was the owner and could set them aside, while in fact he, plaintiff, was not the owner nor in position to comply with this agreement when the contract was made, nor at any time thereafter.

It is contended that the hen is bad because claimant did not give a bill of particulars nor show the quantity of work done and materials furnished and the time when furnished. If this is so, and it is material, it ought to have been raised by a motion to strike off the hen. It is too late to raise this question after giving security and having the hen discharged under the provisions of the act of 1901. But the hen avers in paragraphs five and six that the kind and character of the work and materials are for painting and glazing, and the amount is $110. Paragraph six of section 11, Act of 1901, P. L. 431, requires a detailed statement of the kind and character of the labor and materials furnished only when the contract is with other than the owner or not for an agreed sum. The amendatory Act of April 17, 1905, P. L. 172, requires to be stated the amount claimed to be due and the nature or kind of the work done, or the kind and amount of materials furnished, or both; and the time when the materials were furnished, or the work done, or both, as the case may be. But the act of 1905 does not apply to this hen, the contract for the work and materials having been made before the passage of that act: Horn & Brannen Mfg. Co. v. Steelman, 215 Pa. 187. But if it did apply it would not change the.result. That provision of the act is in substantially the words of the act of 1836. This clause of the act of 1836 was construed in Young v. Lyman, 9 Pa. 449, where it was held that in case of contracts with the owner no bill of particulars need be attached; see also Bohem Bros. v. Seel, 185 Pa. 382.

We are not convinced that this record discloses any reversible error. The assignments of error are ah dismissed and the judgment is affirmed.


text:
    Metzger v. Cecilia Musical Beneficial Association of Philadelphia, Appellant.

      Beneficial associations — Benefits—Absent member — Certificate of physician — Appeal—By-laws.
    Where the by-laws of a beneficial association provide that an absent member in applying for benefits shall produce a sworn certificate of a physician, the production of such certificate will relieve him from complying with a by-law which reads: “Any member who shall think himself aggrieved by the' refusal of the visiting committee to grant the benefits he may claim, shall appeal to the association for redress before commencing a suit at law on the penalty of expulsion."
    Where a nonresident member sends to the association certificates in a foreign language, unsworn to, which the officers pay, believing that they were sworn to, and thereafter sends two certificates in English unsworn to, one of which was apparently not delivered to the association, and the other contained an admittedly false statement, and thereafter for fifteen months, until the member’s death, benefits were paid on certificates properly sworn to, the estate of the member cannot recover on the two certificates which were not paid. In such a case there was no such course of dealing as to justify a finding that the association waived compliance with the by-law which required the certificates to be sworn to.
    Argued Oct. 11, 1907.
    Appeal, No. 136, Oct. T., 1907, by-defendant, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1900, No. 562, on verdict for plaintiff in case of Rosina Metzger, formerly Rosina Thumann, Executrix of Heinrich Thumann, deceased, v. The Cecilian Musical Beneficial Association of Philadelphia.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit for benefits.
    The court charged in part as follows:
    [Now, the sole question in this case for you to determine is whether or not Mr. Thumann was lulled into a sense of security with regard to the certificate which he was obliged to furnish the company under the by-laws, by reason of the fact that the company paid him money upon improper certificates from Germany. [1]
    [Now, it is for you to say whether or not there was anything in this case which induced Mr. Thumann to be, you might say, careless with regard to the certificates which he supplied the organization. The by-law says positively that the certificate must be sworn to. It is admitted that the organization paid sick benefits for twenty-seven weeks upon certificates that were not sworn to. There is testimony that certificates were sent from Colorado and Florida that were not sworn to. Now, was Mr. Thumann misled by the conduct of the officers of the association under the circumstances? If he in good faith sent eertificates which were not sworn to and received payments upon them, and if he in good faith sent other certificates which were not sworn to, it was the duty, under the law, of the officers of this association to notify him that his certificates were not in proper form, and that for that reason they would not pay them. If they failed to do that, it is for you to say whether or not he had a right to expect and assume that the same rule which prevailed with regard to-the payments made while he was in Germany was to prevail while he was in Colorado and Florida. [2]
    [The sole question here is whether or not he was misled by the action of the officers of the association. If he was, his widow is entitled to recover the amount which she claims. Because I charge you as a matter of law that it was the duty of the officers of this organization to notify him that his papers were not in proper form, so that he might have an opportunity to correct them. If, from the evidence, you conclude that he did not receive any such notice and that he was sending his certificates on with the expectation that he was to receive this money ultimately, and did not realize that they were improper in form, you may render a verdict for the plaintiff. If, however, on the other hand, you have reason to believe from the evidence that this man knew these papers were not in proper form, and if he knew the payments were not being made to him because they were not in proper form, and’he had time and opportunity to correct them and make them comply with the requirements of the by-laws, then it would be your duty, under the evidence, to render a verdict for the defendant.] [3]
    Verdict and judgment for plaintiff for $310. Defendant appealed.

      Errors assigned were (1-3), above instructions, quoting them.

      Joseph Levy, with him George B. Somerville, for appellant.—
    To entitle a claimant to sick benefits he must show affirmatively a strict compliance with the by-laws: Myers v. Alta Friendly Society, 29 Pa. Superior Ct. 492; Carey v. Fire Ins. Co., 171 Pa. 204; Myers v. Fritchman, 6 Pa. Superior Ct. 580; Wick v. Accident Order, 21 Pa. Superior Ct. 507.
    By-laws requiring members to appeal to the tribunal of the order, before resorting to a suit at law, will be enforced by the courts: Beeman v. Supreme Lodge, 29 Pa. Superior Ct. 387; Myers v. Fritchman, 6 Pa. Superior Ct. 580; Leech v. Harris, 2 Brews. 571; German Reformed Church v. Com., 3 Pa. 282; Sperry’s App., 116 Pa. 391; Riddell v. Harmony Fire Co., 8 Phila. 310.
    February 28, 1908:
    Want of jurisdiction may be set up for the first time in the appellate court: Borough of Little Meadows, 28 Pa. 256; Fowler v. Eddy, 110 Pa. 117; Wall v. Wall, 123 Pa. 545; Hill v. Tionesta Twp., 129 Pa. 525; Middletown Road, 15 Pa. Superior Ct. 167.
    There is no estoppel where parties make a mutual mistake, or where one party is not misled: Lawrence v. Luhr, 65 Pa. 236; Heller’s App., 116 Pa. 534; Newman v. Edwards, 34 Pa. 32; Thompson’s App., 126 Pa. 367; Sensinger v. Boyer, 153 Pa. 628.

      William H. Burnett, with him Adolphe Schewe, for appellee.—
    The return of the certificates without objection constitutes a waiver: Stambler v. Order of Pente, 159 Pa. 492; Oswalt v. Fire Ins. Co., 175 Pa. 427; Welsh v. London Assur. Corp., 151 Pa. 607; Carpenter v. Allemannia Fire Ins. Co., 156 Pa. 37; Ins. Co. v. Cusick, 109 Pa. 157; Universal Fire Ins. Co. v. Block, 109 Pa. 535; Thierolf v. Ins. Co., 110 Pa. 37.
    The course of dealing showed a waiver: Susquehanna Mutual Fire Ins. Co. v. Hallock, 22 N. W. C. 151; Oswalt v. Ins. Co., 175 Pa. 427; Ins. Co. v. Cusick, 109 Pa. 157; Davis Shoe Co. v. Kittanning Ins. Co., 138 Pa. 73; Thierolf v. Ins. Co., 110 Pa. 37.
    It is'submitted that the case of Stambler v. Order of Pente, 159 Pa. 492, decides the case at bar.
   Opinion by

Morrison, J.,

The court below submitted the case to the jury and a verdict for $310 in favor of the plaintiff was found and judgment entered thereon. 'In this appeal it is contended that the evidence did not warrant submitting the case to the jury.

The first assignment of error is, in substance, that the plaintiff had no right to sue before appealing to the association from the refusal of the visiting committee to grant the benefits claimed. This question was not raised in the court below and it is contended here that it is too late to raise it for the first time in this court. Chapter IX of the by-laws of the association provides: Section 1: “The visiting committee shall consist of three members, who shall be appointed for three months, in such manner that each member shall become the chairman of said committee for the third month of his appointment.” Sections 2 and 3, of the same chapter, designate the duties of the visiting committee and it seems clear that these duties are limited to members who reside within the city of Philadelphia, and have no application to members residing abroad.

Chapter XVII requires any member absenting himself from the city to give notice to the secretary, and he may obtain leave of absence by paying his dues in advance. Section 6 reads: “Any member absent on leave, or residing elsewhere, if applying for relief shall produce or cause to be produced a certificate of a physician or counsel, and duly sworn to before a magistrate of the city, county or place where he may reside at the time of his sickness, wherein shall be mentioned the number of weeks wherein he was disabled, together with the name and nature of his complaint.”

Section XIV reads: “Any member who shall think himself aggrieved by the refusal of the visiting committee to grant the benefits he may claim, shall appeal to the association for redress before commencing a suit at law on the penalty of expulsion.”

Heinrich Thumann was a member in good standing for nine years prior to his death; he became ill in March, 1897, and went to Germany, seeking to benefit his health. From Germany he went to Philadelphia, where he remained until September, 1897, when he went to Colorado, where he remained something over a year, and from there went to Florida, where he died. Sick benefits were paid to Thumann on the certificates from Germany and the evidence is very clear that although the certificates were not sworn to, yet Thumann and the officers of the association understood and believed that they were sworn to as the by-laws required. This mistake occurred because the certificates were in German and were certified but not sworn to. Thumann was paid his sick benefits while he remained in Philadelphia, after his return from Germany. While in Colorado, he caused a certificate, unsigned and not sworn to, dated September 2, 1897, to be prepared for sending to the association, but there is no evidence that it was ever received and it seems to be conceded that the officers of the association never received it. In fact, the evidence only shows that it was placed in an envelope and addressed to the secretary of the association, but there is no satisfactory evidence that it was actually mailed, although Mrs. Metzgar understood that it was. On November 9, 1898, a certificate was mailed to the secretary of the association, signed by Dr. Lucy, but not sworn to, showing that Thumann had been under his care for the last three months. This certificate was accompanied by a letter from Thumann in which no reference was made to the certificate of November 2, 1897, nor to any claim for benefits prior to the period covered in the latter certificate. The receipt of this certificate was acknowledged by the secretary, who, in reply, called to Thumann’s attention the requirements of the by-laws as to sworn proof of disability, but said he would try to have that fixed, and as soon as he should hear from him again he would see that he received his benefits as per the certificate of Dr. Lucy. Thumann replied to the secretary’s letter by saying that he was surprised when he read Dr. Lucy’s 'certificate; that he was never under his care nor of any physician in Colorado; that he said nothing about this at the time he sent the certificate, because he thought he would see what might be said about it. There was no further correspondence about the matter, and although Thumann lived for fifteen months afterwards, he made no further claim for the benefits and none were paid. It is under the certificate of December 2, 1897, and the one of November 9, 1898, that the plaintiff’s claim is made.

On December 8, 1898, Thumann sent a proper certificate of his condition from Florida, and from that time/until his death, February 18, 1900, he was regularly paid benefits, but no reference was ever made to the benefits for which this suit was brought.

The questions for decision, then, are: 1. Can the plaintiff maintain this suit without a formal appeal to the officers of the association, under the by-laws, on the theory of being aggrieved, by the action of the visiting committee? 2. Was there sufficient evidence to submit to the jury as to the claim under the certificates of December 2, 1897 and November 9, 1898, from Colorado?

As to the first question, we are of the opinion that the plaintiff’s claim was not subject to the action of the visiting committee, and if certificates had been furnished from Colorado, duly made out and sworn to, as the by-laws required, that would have been a sufficient appeal to the association and the only one that the claimant was required to make while residing in Colorado. We, therefore, hold that the plaintiff had a right to bring suit on that ground and overrule the first assignment of error.

As to the second question, our judgment is in favor of the defendant. It is very clear that the deceased and his executrix understood, as they were bound to understand, that the bylaws required sworn certificates from Germany, Colorado and Florida. It is equally clear and undisputed that while the certificates from Germany were not sworn to, yet the deceased and the officers of the association believed that they were sworn to, and, therefore, it was error for the court below to allow the jury to find from the evidence a course of dealing between the parties which waived the requirement of sworn certificates.

In Myers v. Alta Friendly Society, 29 Pa. Superior Ct. 492, we held (p. 498): “To entitle a claimant to sick benefits, he must show affirmatively a strict compliance with the by-laws.” Also (same page) “To those who have associated themselves togethér these by-laws are the law by which they are to be governed.”

“Officers cannot waive by-laws intended for the protection of the members, or deprive members, other officers, or subordinate bodies, of rights accruing to them through the constitution and by-laws: ” 3 Am. & Eng. Ency. of Law (2d ed.), p. 1069.

We will not be understood as holding that if the officers of the defendant association had knowingly adopted a system of paying sick benefits to the deceased, without sworn certificates, so that he was entitled to believe that such certificates were no longer required, that there might not be such a course of dealing established as would entitle the claimant to recover without sworn certificates. This because it is not necessary to so hold in the present case. But it would take a strong case to justify holding that a claimant, under such circumstances, could recover without complying with a reasonable provision of the by-laws.

The learned counsel for the appellee relies strongly on the evidence of waiver as follows : 1. “The retention by the society of the defective certificates, and failure to make objection to them.” 2. “The course of dealing, or practice of the society in accepting similiarly defective certificates immediately prior to this time, and making payments thereunder.” 3. “With special reference to certificate, dated November 9, 1898, which certificate certified that decedent had been under the doctor’s care for three months past, the letter of William H. Daugherty, the secretary of defendant, to decedent, dated November 25, 1898, misleading the decedent in believing that the certificate would be accepted.” Now, there is no evidence that the society retained defective certificates which they knew to be defective, prior to the one of November 9, 1898. If the latter certificate and the Daugherty letter stood alone, there might be some ground for the counsel’s contention. But in the light of the Dougherty letter calling Thumann’s attention to the defect in the certificate, and Thumann’s letter of December 4, 1898, in which he says: “As for the certificate of Dr. Lucy, I was very much surprised when I read it. I was not under the care of Dr. Lucy nor under the care of any doctor in Colo., except that the wound of my forehead was stitched together by a physician of Colo. Springs.” We are unable to understand how it can be argued on this state of facts that Thumann was misled or that he and his executrix could expect, without more, that the association would pay sick benefits based on the certificate of December 2,1897, never received by the association, and the one of November 9, 1898, which Thumann frankly stated in his letter was false. This view of the facts renders inapplicable the half dozen authorities relied on by the counsel tending to support a waiver. Among these authorities are Stambler v. Order of Pente, 159 Pa. 492; Welsh v. London Assurance Corp., 151 Pa. 607; Carpenter v. Allemannia Fire Ins. Co., 156 Pa. 37; Insurance Co. v. Cusick, 109 Pa. 157; Insurance Co. v. Block, 109 Pa. 535; Davis Shoe Co. v. Kittanning Ins. Co., 138 Pa. 73; Thierolf v. Insurance Co., 110 Pa. 37.

These familiar authorities are very plain on the question of waiver, but the plaintiff’s difficulty is that the facts do not bring her case within the rule established by the authorities. She is forced to rely on two certificates, as to one of which there is no evidence that it ever reached the association, but there is evidence to the contrary; as to the other certificate, her husband specifically admitted in the Dougherty letter of December 4, 1898, that it was not true. After receiving that letter we do not think the secretary of the association was called upon to return the certificate or say anything more about it.

In Stambler v. Order of Pente, 159 Pa. 492, relied on by counsel for the plaintiff, the defective proofs of disability were retained by the defendant, without notice to plaintiff, of any objection thereto on any ground.

On December 8, 1898, Thumann sent a certificate from Florida and he was regularly paid benefits until he died. Under the evidence, the inference is irresistible thdt the claimant knew he had not complied with the by-laws and that he was not entitled to the benefits attempted to be established by the two certificates from Colorado. In our opinion there is not enough in the record to sustain the court in allowing the jury to find against the defendant for the benefits alleged to have accrued in Colorado. It is not necessary to discuss the several assignments separately.

The assignments of error are all sustained, except the first, and the judgment is reversed.