eficiary in a life policy issued to him by the association.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1834.]

4. INSURANCE 743-BENEFIT INSURANCERIGHTS OF BENEFICIARY-WITHDRAWAL OF INSURED.

Where the beneficiary in a policy of fraternal insurance on the life of her husband assumed the payment of premiums at the time of a divorce under an agreement with the local financial secretary, who by the terms of the policy and by-laws was the agent of the members, and paid the premiums until the policy was canceled upon the rightful withdrawal of the husband from membership in the order, the moneys received by the order were earned premiums upon a valid contract of insurance, which the beneficiary had no right of action against it to re

cover.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1888.]

Department 2. Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge. Action by Mary Somo against the Supreme Court of the Independent Order of Foresters. Judgment for plaintiff, and defendant appeals. Reversed, and judgment entered for defendant.

This is an action for money had and received. The facts involved are substantially these: On the 8th day of March, 1893, W. J. Riley became a member of Court Pacific No. 1247, Independent Order of Foresters, located at Portland, Or., and received a certificate therefrom entitling the beneficiary named therein to receive upon his death the sum of $3,000. The beneficiary named was this plaintiff, who was then Riley's wife. In 1905, domestic trouble arose, ending in a divorce, and subsequently plaintiff married another. In connection with the settlement of their property rights at that time it was agreed be tween them that Mrs. Riley should continue as the beneficiary named in the certificate, and should assume the payment of the dues and assessments thereafter accruing. She testifies that she at once interviewed F. X. Le Grand, financial secretary of the subordinate lodge, informed him of the arrangement, and asked him if it would be satisfactory to the order, and that he replied "that, being as I was the beneficiary, the order would protect me." She continued to pay the dues and assessments as they matured until November 30, 1912, when, Riley having formally withdrawn from the order, the "Supreme Court" of the order having its headquarters in Toronto, Canada, declined to receive any further payments from anybody on the certificate and treated the same as canceled. Plaintiff then brought this action to recover the sum of $411.22, being the amount she had paid in dues and assessments. A trial was had, resulting in judgment for plaintiff in accordance with the prayer of her complaint, and defendant appeals.

BENSON, J. (after stating the facts as above). There are a number of assignments of error, but the conclusions we have reached render it unnecessary to consider any of them except the defendant's motion for a directed

verdict.

[1] At the outset it may be observed that the beneficiary certificate contains the following clause:

"I hereby expressly agree that the constitution and laws of the Independent Order of Foresters, as well as any amendments thereof which may be adopted from time to time by the Supreme Court, shall be a part of this contract."

Subdivision 6 of section 73 of the laws of the order reads thus:

"As soon as a court is instituted, whether instituted under the authority of the head office of the order, or under the authority of a high court, such court shall forthwith become and be the agent of the members thereof and applicants for membership therein, and no act of such court or of any officer or member thereof shall be construed as having been done for the order, but shall be construed as having been done for such for membership therein." court and the members thereof and applicants

Subdivision 10 of section 104 reads as fol

lows:

"As the financial secretary and other officers of a court are not officers of the corporation contracting with the beneficiary members of the order, the order itself, subject to the provisions of section ninety-seven, subsection seven, shall in no wise be held accountable for any dereliction of duty on the part of the financial secretary or of any other officer of a court, and all payments for whatsoever purpose made to any officer of a court by the members of such court shall be received by such officer as agent of the member making the payment."

There is no contention that the Supreme Court had any knowledge of the alleged agreement between plaintiff and the financial secretary of the subordinate lodge, but plaintiff's right of recovery is based entirely upon the theory that Le Grand, in promising to protect plaintiff's interest as beneficiary, was acting as the agent of the Supreme Court, and that it was therefore bound by his promise. This theory was adopted by the trial court in its instructions to the jury, and in support thereof our attention is called to the cases of Whigham v. Foresters, 44 Or. 543, 75 Pac. 1067, and Patton v. Women of Woodcraft, 65 Or. 40, 131 Pac. 521. The first of these cites as authority Cox v. Royal Tribe, 42 Or. 365, 71 Pac. 73, 60 L. R. A. 620, 95 Am. St. Rep. 752, and Patterson v. United Artisans, 43 Or. 333, 72 Pac. 1095, both of which involve the question as to whose duty it was to supply the supreme lodge with the proofs of death. As to the question of agency both opinions were based upon specific bylaws requiring the subordinate lodge to secure and present such proofs, and it does not appear in any of these cases that the attention of this court was called to any provisions similar to those quoted. But if these Geo. L. Masten, of Portland, for appellant. can be construed to support plaintiff's conE. E. Heckbert, of Portland, for respondent. | tention, they have, to that extent, been prac

motion for a directed verdict should have been allowed. Since in no event could the plaintiff recover in this action, a judgment will be entered here in favor of the defendant.

tically overruled by the later case of Hart-his agreement with her. It follows that the man v. National Council, 76 Or. 153, 147 Pac. 931, L. R. A. 1915E, 152. Plaintiff urges that this case is based upon the statute of 1911 (Laws of 1911, p. 354), and that the contrary doctrine prevailed until then. We have examined the statute with care, and are unable to find any provision therein relating to the subject of agency, nor do we discover in the opinion of Mr. Justice Burnett, in the Hartman Case, that his conclusion was influenced by any statutory provision. On the contrary his views are expressed thus:

"The question is: What is the legal conclusion to be drawn from those uncontroverted facts? Some courts have gone so far as to say that, notwithstanding the laws of the order and the stipulations of the parties to be bound by them, yet the local officers are the agents of the chief organization of the order, and not of the members or the local council. Such is the rule laid down in such cases as Dromgold v. Royal Neighbors, 261 Ill. 60, 103 N. E. 584, and Dougherty v. Foresters, 125 Minn. 142, 145 N. W. 813, and other precedents which might be noticed. The great weight of authority, however, is to the effect that it is competent for parties to enter into a contract such as is here set out and embodied in the certificate and laws of the order. There is nothing contrary to publie policy or in violation of any public law in making such a stipulation. There is good reason for making the officer of the local council the agent of the member, for that official is elected by the vote of the members, and, being so chosen, it is competent for the parties to stipulate against a possible favoritism to be shown by the officer to the person who elects him as against the general membership of the order."

[2, 3] It is strenuously urged by plaintiff that this is a case wherein the defendant has received money which in good conscience it ought to refund. We cannot concur in this contention, since by the great weight of authority the divorce did not deprive her of her right to recover the full value of the policy in the event of the death of the assured prior to his withdrawal from the order. 14 M. A. L. 146; Overhiser v. Overhiser et al., 63 Ohio St. 77, 57 N. E. 965, 50 L. R. A. 552, 81 Am. St. Rep. 612; Conn. Mut. Life Ins. Co. v. Schaefer, 94 U. S. 457, 24 L. Ed. 251. Neither could the defendant prevent Riley from severing his connection with the order. "Unless the compact between the members of a voluntary association provide to the contrary, a member may withdraw from it at any time. The entering into it, the remaining in it, the performance of duties incumbent upon the member, by reason of his membership, are purely voluntary.' Consequently the member may withdraw when he pleases without the consent of the association." 1 Bacon, Benefit Societies, section 111, and cases there cited.

MCBRIDE, C. J., and BEAN and McCAMANT, JJ., concur.

(84 Or. 15)

ROSENWALD v. OREGON CITY
TRANSP. CO.

(Supreme Court of Oregon. April 17, 1917.)
1. APPEAL AND ERROR 1106(3)-DETERMI-
NATION - REMAND FOR AMENDMENT-FAIL-
URE OF PROOF.

L. O. L. §§ 97-99, relating to curing variances by amendment, but providing that failure of proof is not a variance, does not authorize remanding a case with permission to amend, where plaintiff entirely failed to prove his allegations.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4389-4391.]

2. APPEAL AND ERROR 1152 MODIFICATION OF JUDGMENT-FAILURE OF Proof.

Where plaintiff's failure of proof merited a nonsuit below, a judgment for defendant will be modified to one of nonsuit, although plaintiff resisted a nonsuit motion in the court below.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4483-4496.]

Department 1. Appeal from Circuit Court,
Marion County; Percy R. Kelly, Judge.
On rehearing.

For former opinion, see 163 Pac. 831.

Hall S. Lusk, of Portland (Carson & Brown, of Salem, and Dolph, Mallory, Simon & Gearin, of Portland, on the brief), for appellant. Abraham Nelson, of Portland (Westbrook & Westbrook, of Portland, on the brief), for respondent.

BENSON, J. In an able argument the plaintiff urges that the opinion of the court in this case is erroneous because while it holds that the trial court gave to the jury an incorrect instruction, it further determines that this error is negligible for the reason that there was a fatal variance between plaintiff's pleadings and proof which would prevent a recovery in any event. It appears from the record that the complaint bases the right of recovery upon the common-law liability of the carrier while upon the trial, plaintiff, in his direct case, offered proof of a written agreement expressly limiting such liability. The evidence of this written agreement is nowhere contradicted. It has been repeatedly held by us that where a plaintiff [4] It follows that all of the moneys re- pleads a common-law liability, and proves a ceived by the defendant from the plaintiff written contract expressly limiting such liawere earned premiums upon a valid contract bility, he cannot recover. Normile v. Or. of insurance which was finally canceled Nav. Co., 41 Or. 177, 69 Pac. 928; Union St. through no fault of the defendant, and if she Ry. Co. v. F. N. Bank, 42 Or. 606, 72 Pac. had any right of action it would be against | 586, 73 Pac. 341; McGregor v. O. R. & N. Co., her former husband, Riley, for a breach of 50 Or. 527, 93 Pac. 465, 14 L. R. A. (N. S.)

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

MCBRIDE, C. J., and BURNETT and HAR- under the eminent domain statute, against RIS, JJ., concur.

In Whitehead v. Denver, 13 Colo. App. 134, 56 Pac. 913, it is held that, where a statute requires certain things to be done by a municipality before initiating condemnation pro[1] The first error assigned is that the ceedings, the things required to be done conjudgment of condemnation is without author- stitute a condition precedent to the right ity of law for the reason that the complaint to institute the proceedings and must be alfails to state that the attempted condemna-leged and proved. It is not necessary to purtion proceedings were authorized as requir- sue the authorities farther.

ed by section 206x2, supra. In view that [3] It seems very clear to us that under no demurrer was interposed to the complaint, section 206x2, supra, no condemnation proand no objection respecting its sufficiency | ceedings can be instituted by a city or town

unless "the city council or board of trustees deem it necessary for the public good," and that the judgment of the city council or board of trustees to that effect must be expressed in the form of a “resolution or ordinance." After the passage of the resolution or ordinance one-third of the resident taxpayers may protest against the institution of condemnation proceedings, and, if that number do protest, the whole question must be submitted to the vote of the taxpayers, and it requires a majority to order the proceedings to be commenced. If no protest is made, no doubt the resolution or ordinance, if properly passed, is sufficient to authorize the institution of condemnation proceedings. We thus have a statute which prescribes the necessary steps to be taken before commencing such a proceeding. The owner whose property is sought to be appropriated against his consent certainly has the right to insist that the statute. be followed. That is all Johnston is contending for on this appeal.

of the taxpayers may compel an election regarding the question of whether the condemnation or purchase of the property sought to be acquired is necessary. When the bonds are voted for, the question, of necessity, is no longer an open question. There is no escape from the conclusion, therefore, that where property is about to be taken by a town or city through the exercise of eminent domain under section 206x2, the owner has the right to insist that the provisions of that section be complied with before he is bound to surrender his property. The assignment just discussed should therefore prevail.

He

[4] The next assignment relates to the admission of certain testimony as part of the cross-examination of Johnston, the owner of the spring in question, over his objection. Some 15 years before the trial Johnston had filed a declaration of homestead under our statute in which he stated the value of the land and spring to be much less than he testified their value to be at the trial. was compelled to state on cross-examination what he stated the value of the land with the spring thereon was when he filed his homestead declaration. It is now urged by his counsel that the court permitted the town's counsel to transcend the legitimate bounds of cross-examination in that the statements made by the witness in the declaration of homestead were too remote to establish value or to contradict his present statements, or to affect his credibility. In view of the rapid development of the country and the great increase of values in a compar

We are of the opinion that before the town of Tremonton was authorized to commence condemnation proceedings to condemn the spring and to appropriate the waters thereof it was necessary that the board of trustees should first adopt an ordinance or resolution in which they declared that it is necessary that the spring be condemned and the waters thereof appropriated for the use of the inhabitants of the town. Had that been done, the resident taxpayers would have been given the contemplated opportunity to protest as provided by the statute. It may be that a city or town may seek to condemnatively short period of time, the evidence the property of one or more of the resident taxpayers, and if that be the case such taxpayers should be given an opportunity to protest. The right to protest is, however, given to all resident taxpayers, whether their property is sought to be taken or not, and the town or city must afford them the opportunity to protest as required by the statute.

It follows, therefore, that the passage of a resolution or ordinance is required by the statute before instituting the condemnation proceedings in question is jurisdictional, and hence Johnston did not waive his right to assail the judgment at any time.

It is, however, contended by the town's attorneys that the proceedings were instituted under Comp. Laws 1907, § 309. That section provides for the calling of a special election to vote bonds the proceeds of which are to be applied in payment for the water or for the property condemned or purchased by the town, and has nothing to do with the authority to institute the condemnation proceedings. If counsel's contention should prevail in that regard, then we would in effect be required to repeal section 206x2, supra. Moreover, under that section one-third

was, no doubt, too remote to be of any help to the jury or to in any way affect the credibility of the witness. The court should therefore have sustained the objection.

[5] We remark, however, that if that were the only error assigned, we should not feel inclined to reverse the judgment for that reason alone. In view of the whole record we do not think the evidence, although erroneously admitted, resulted in prejudice to Johnston's substantial rights.

For the reasons stated, the judgment is reversed, and the case is remanded to the district court of Box Elder county, with directions to grant a new trial, to permit the plaintiff, if it is so advised, to amend its complaint in the particulars stated, and in case the complaint is amended so as to comply with the views herein expressed, to proceed with the case in the usual way, and in case the plaintiff refuses or neglects to amend its complaint within a reasonable time to be fixed by the court, then to enter judgment dismissing the complaint; appellant to recover costs.

MCCARTY and CORFMAN, JJ., concur.