Palmer v. Commercial Travellers' Mut. Acc. Ass'n of America

Merwin, J.

The defense in this case is based on the provisions of the certificate of membership. The plaintiff claims that that certificate was not a part of the contract, and that she is not bound by its conditions. Her position is that the contract was complete upon the passage by the board of directors

*873 upon Friday evening of the resolution approving the application and accepting Palmer as a member, and that the certificate executed the next day could attach no condition not specified in the constitution or by-laws. The certificate bears date the same as the resolution, operates as of that date, is under the corporate seal, and is executed by the officer who, by the provisions of its constitution, is to be recognized as the legal representative of the association, and the one to execute all papers legally demanded or requisite in connection with the affairs of the association. It purports to be the corporate act constituting the membership, and stating the contract on the part of the corporation. It was in the form adopted by the board at its organization, and not afterwards changed. The resolution was preliminary, and the certificate was the corporate act and deed. The matter was not completed until the execution and delivery of the certificate. In determing what was in fact the corporate act at that time, the resolution and certificate must be taken together. Very clearly that" was the intention of the officers of the corporation. Their membership contracts had always been in that way, and there was no reason for a change in this instance. That was the contract they assumed to make in conducting the affairs of the corporation. I can see no reason to doubt that the contract which in this case was proffered by the corporation to Palmer in return for his application was represented by the certificate. That was what they sent to Palmer, and was the only communication from defendant to Palmer of its manner of action upon this subject,—the only obligation delivered-by defendant. This Palmer received and kept. That Palmer expected to receive a certificate is indicated by a reference to one in the application. The presumption is he expected to receive a certificate in the usual form issued by the defendant, ( Van Loan v. Association, 90 N. Y. 285 ; De Grove v. Insurance Co., 61 N. Y. 602 ;) and this presumption is strengthened by the fact that Palmer kept the certificate sent him, and thereafter paid his dues and assessments. It was apparently not contemplated by either party that there should tie anything else that represented the obligation of defendant except the certificate. There is nothing to indicate that Palmer had any reason to believe that the contract with him would be any different from the usual form. The plaintiff, in this respect, must occupy her husband’s position. I see no way to avoid the conclusion that the certificate must be considered in determining the obligations of the defendant. The certificate must be deemed to indicate what both parties meant and understood by the acceptance mentioned in the resolution. The case of Fried v. Insurance Co., 50 N. Y. 243 , is cited by plaintiff. There the plaintiff applied to the agent of the defendant in New York for an insurance on the life of her husband, presented a proposal, and paid the premium, and received from the agent a receipt stating that the proposal would be forwarded to the home office for acceptance, and, if accepted, a policy would be issued, and, if declined, the premium be returned, and, in ease the husband died before the decision was received, the sum insured was to be paid. The proposal was forwarded and accepted, a policy issued by defendant and forwarded to the agent, to be executed and delivered. The agent executed it, but declined to deliver it, he having been advised that the health of the assured had declined, and he had standing instructions not to deliver in such a case. It was held that the contract and acceptance were unqualified, and could not be limited by private instructions to the agent; stress being laid on the idea that in case the party died before decision the sum insured was to be paid, and that the instructions to the agent did not apply to a case where the premium was paid. The case before us is very different. But the plaintiff says that the board of directors had no power to make such a contract as is indicated by the certificate. If, as I think it must be held, the contract in that form was the only one presented and delivered on the part of the defendant, and that is void for want of power, then the plaintiff has no contract to stand on. It is the one presented to and received by Palmer or none.

*874 It is further urged that the provision that death must happen within 90 days after the accident is not binding upon the insured for the reason that it is in conflict with the provisions of the constitution on the subject. The plaintiff cannot accept one part of the contract and reject another. The question for plaintiff is not what was the power of the defendant, but what was the contract in fact. The defendant or its board of directors was not bound to accept the candidate for membership. If in doing so it imposed conditions beyond its constitution, but not illegal, and those conditions were repudiated by the other party, then there was no meeting of minds, and no acceptance. But assume the plaintiff can raise the question that the board of directors had no right to impose the condition referred to, let us see how the matter stands. By the statute under which the defendant was incorporated it was provided (chapter 319, Laws 1848, § 3) that the directors “shall have the control and management of the affairs and funds of said society.” By the constitution and by-laws they are given the general supervision of the business; the right to prescribe the form and manner of applications for membership, and decide upon the same; decideonall proofs of accident and of death by accident; execute and carry into effect the provisions not otherwise provided for; make such rules for their government and the transaction of their business, notprovided for in the constitution or otherwise provided by law, as they may deem necessary and best. Thé constitution provided in one section that “upon sufficient proof of death” through certain means, each member should be assessed the sum of two dollars, and the amount so derived, not exceeding a certain limit, be paid to the beneficiary, and in another section it provided that “upon suitable proof of the death by accident” the board of directors should order a special assessment upon each member of two dollars, and the amount so collected, not exceeding $5,000, be paid to the beneficiary. What was to be deemed sufficient proof or suitable proof was not stated. That was for the board of directors to determine. There was no provision as to when the money should be paid to the beneficiary, ór as to when the death must happen with reference to the accident, or as to what notice should be given. Can it reasonably be assumed that it was designed to leave the matter entirely indefinite as to when, with reference to the time of the accident, the death should happen, or the notice be given? That is not usual course of such associations, and was not so understood here; for the board, immediately upon its organization, adopted the form of certificate in question, were required to make annual reports to the association, and presumptively did so, and have always used the certificate as adopted. By the broad language of the statute fixing the power of the directors, they had the right to adopt the certificate and impose the condition in question. In view of the action of the directors and the acquiescence of the association, we have not, I think, any right to assume that the association designed to limit the power of the directors in this regard. The association did not specifically make any restriction. The more reasonable inference, in view of the subsequent action, is that this was a matter left for the directors to regulate in determining what was suitable proof or under their general powers. Be this as it may, I see no escape from the conclusion upon the other feature of the case that the only membership proffered or accepted by the defendant or its board of directors, or expected by the recipient Palmer, was the one indicated by the certificate, and that under that the plaintiff, if she takes at all, necessarily takes subject to the conditions therein stated.

There is nothing in the case upon which plaintiff can base an estoppel. There is nothing to show that Palmer expected to receive anything different from what he in fact did receive. PTor is there anything in the manner of the refusal of defendant to pay the claim that affects its right to raise the question here considered. In view of the conclusions thus far, it is not necessary to consider the question as to want of immediate notice of the accident *875 or the death, which is raised by the defendant. There is no question but that the conditions of the certificate, if effective, are, upon the facts, a perfect defense. The death did not occur within 90 days from the happening of the accident. Ho claim is made on account of temporary or total disability simply, but only for the death. It follows that the plaintiff is not entitled to recover. Judgment ordered for the defendant upon the submission, with costs. Judgment to be settled by Merwin, J. All concur.