Mutual Endowment Assessment Ass'n v. Essender

Stone, J., delivered the opinion of the Court. The whole contract between the appellant Association and Robertson, the insured, is contained in the certificate of membership issued to Robertson, and the rights of the parties in this case must depend upon that certificate alone. The circular shown hy Mr. Mitchell, acting as the agent of the Association, to Mr. Robertson in his life-time, and before he became a member, formed no part of his contract, and was in fact, merely an advertisement setting forth the advantages of the Association. The first Article of the certificate of membership is as follows: 1st. “ It is agreed, that the said Nathaniel C. Robertson, shall pay the sum of twenty-five dollars, as a membership fee; and further, the sum of $2.50 quarterly, for expenses, to be paid said Association, and also such sums as may be required by the conditions hereto annexed, for mortuary assessments.” If this Article was the only part of the certificate that related to the quarterly dues, it would have been the duty of the insured to have paid these expenses without any call or notice.

But by the sixth clause in the certificate, a different- face is put upon the matter. That clause is in these words: 6th. “ The holder of this certificate further agrees, and accepts said certificate upon the express condition, that if the said assessment or quarterly dues shall not be paid at the office of said Association, within thirty days after date of notice, the certificate shall be null and void and of no effect.” By this latter clause the Association assumed the burden of giving the insured a notice, and the insured did not for ⁴⁶⁷ feit his membership, if he paid his dues at any time within thirty days from the date of such notice. Taken and construed together, as the first and sixth clauses of the certificate must he, they mean this, that while the insured, Robertson, after having paid his membership fee of twenty-five dollars, agreed to pay the Association two dollars and a half quarterly, the Association agreed not to forfeit his membership, unless he made default in the payment of his quarterly dues and assessments for more than thirty days after they gave him notice. There is no question raised as to the assessment for death, hut only as to the quarterly dues.

Robertson may have neglected or omitted to pay his quarterly dues, hut that fact alone would not, without the notice from the company, deprive him of his membership. The notice was a condition precedent to the forfeiture, and it becomes important to enquire what such notice should contain. We think it quite clear that the notice contemplated by the sixth clause, must mean a notice given after the quarterly dues were payable. It does not mean a notice given in advance and before the quarterly dues were payable; for if that were so, Robertson could have been notified on the very day of the issue of the certificate, (23rd Dec., 1879,) that he must pay his