Farmers Union Ins. Co. v. Wilder.

ance of his granary, barn, and grain therein, described in petition, among other property in said application described, giving therefor his note for $16, and premium contract for $48, and that on January 10, 1889, defendant issued to plaintiff the policy introduced in evidence, insuring said granary and stable at $500, and grain therein for $200, for five years from January 24, 1889; that said property was totally destroyed by fire, without any fault or neglect of plaintiff, November 11, 1889, and that said property so destroyed was of the value of $700 and covered by said policy at time of said loss; that plaintiff duly notified defendant of said loss and that no part of said loss has been paid; that three assessments were made on said premium contract of $48, to wit, March, June, and September, 1889, respectively, and no part thereof was paid by plaintiff, and all were due at time of said loss; that after said loss plaintiff offered to pay the same, which defendant declined and refused to receive; that said policy provides that thirty days after date of notice of any assessment it shall lapse and cease to be in force; that last part of said application and contract of insurance provides as follows: This contract may be canceled at the request of the assured by paying all assessments up to date of such request, together with $2 extra as a cancellation fee, and the surrender of membership certificate to the company. This company reserves the right to cancel this contract by giving notice of same and returning premium contract or pledge to member.'

"Court also finds that defendant never returned or offered to return to plaintiff his $16 note and premium contract of $48, or either of them, nor did said defendant cancel said policy or notify said plaintiff of any intention to do so. Court further finds defendant is entitled to a credit of $, principal and interest on the three assessments unpaid by plaintiff.

"From last clause in sec. 3, secs. 17, 18, and 42, ch.

Farmers Union Ins. Co. v. Wilder.

43, Statutes Nebraska; vol. 11, Encyclopædia of Law, p. 342; No. 7, p. 336, No. 2 and p. 308, No. 5, and in particular cases cited in said numbers or sections, 26 Ia., 10; 59 N. Y., 521; 34 N. W. Rep., 151; 18 Id., 749; 39 Wis., 120, last part of the case, 16 Neb., and cases cited on p. 406; 15 Id., 494; 18 Id., 501, the court do find in law the defendant's continuation to make assessments against plaintiff and notice to pay same, thereby recognized said policy and waived the forfeiture of the same, even if it lapsed by failure to pay said assessments, and continued it in force.

"The court further finds their retention of plaintiff's $16 note and $48 premium contract and making three assessments thereon, and notice to pay same, in law waived any lapse of said policy, and that their failure to return to plaintiff his said note and contract and cancel said policy, and notify plaintiff of the same, renders the defendant liable in this case.

"It is therefore ordered by the court that said policy be not reformed but remain in full force as issued, and it is also considered and adjudged that the said plaintiff have and recover of and from said defendant $695, and his costs herein expended, taxed at $."

Section 17 of chap. 43, Comp. Stats. of 1887, is as follows: "All notes deposited with any mutual insurance company, at the time of its organization, as provided for in section 3 hereof, shall remain as security for all losses and claims, until the accumulation of the profits invested as required by the sixth section of this act shall equal the amount of cash capital required to be possessed by stock companies organized under this act, the liability of each note decreasing proportionately as the profits are accumulated; but any note which may have been deposited with any mutual insurance company subsequent to its organization, in addition to the cash premiums, or any insurance effected with such company may, at the expiration of the

Farmers Union Ins. Co. v. Wilder.

time of such insurance, or upon the cancellation by the company of the policy, be relinquished and given up to the maker thereof, or his legal representatives, upon his paying his proportion of losses and expenses which may have accrued thereon during such term. The directors or trustees of any such company shall have the right to determine the amount of the note to be given, in addition to the cash premiums, by any person insured in such company, and every person effecting insurance in any mutual company, and also their heirs, executors, administrators, and assigns continuing to be so insured, shall thereby become members of said company during the period of insurance, and shall be bound to pay for losses and such necessary expense as aforesaid accruing to said company, in proportion to the amount of his or their deposit note or notes; Provided, That any person insured in any mutual company, except in the case of notes required by this act to be deposited at the time of its organization, may at any time return the policy of cancellation, and upon payment of the amount due at such time upon his premium note, shall be discharged from further liability thereon."

"Sec. 18. The directors shall, as often as they deem necessary, after receiving notice of any loss or damage, settle and determine the sums to be paid by the several members thereof, as their respective portions of such loss, and publish the same in such manner as they shall deem proper, or the by-laws shall have prescribed; but the sum to be paid by each member shall always be in proportion to the original amount of his deposit note or notes, and shall be paid to the officers of the company within thirty days after the publication of said notice; and if any member shall, for the space of thirty days after personal demand, or by letter, for payment shall have been made, neglect, or refuse to pay the sum assessed upon him as his proportion of any loss aforesaid, the directors may sue for and recover the whole amount of his deposit note or notes, with costs

Farmers Union Ins. Co. v. Wilder.

of suit; but execution shall issue for assessments and costs as they accrue only, and every such execution shall be acaccompanied by a list of losses for which the assessment was made; if the whole amount of deposit notes shall be insufficient to pay the loss occasioned, the sufferers insured by the said company shall receive, toward making good their respective losses, a proportionate share of the whole amount of said notes, according to the sums to them respectively insured, but no member shall ever be required to pay for any loss more than the whole amount of his deposit note or notes."

Section 3 requires the certificate of a justice of the peace, notary public, or clerk of the district court to accompany each note received from a person insured, certifying that in the opinion of such officer the person making the same is pecuniarily good and responsible for the same in property not exempt from execution by the laws of the state, etc.

By section 18, where an assessment has been made and is not paid to the officers of the company within thirty days after the publication of notice, and after thirty days from personal demand or by letter, neglect, or refuse to pay his assessment, the company may sue for and recover the whole amount of his deposit note with costs of suit, and executions shall thereupon be issued on said judgment from time to time as assessments are made for losses. That is the mode provided by law for collecting delinquent assessments and should have been followed in this instance. In addition to this no forfeiture was declared and the company treated the contract as continuing. Upon the whole case the judgment is supported by the clear weight of evidence and is

AFFIRMED.

THE other judges concur.

State Bank of Wilcox v. Wilkie.

STATE BANK OF WILCOx v. F. G. WILKIE.

[FILED NOVEMBER 2, 1892.]

1. Negotiable Instruments: ACTION ON DRAFT: PROOF OF ACCEPTANCE. An action was brought upon two drafts which it was claimed one W. had accepted. This he denied. The proof tended to show that the alleged acceptance had been obtained, if at all, January 14, 1890, about 7 P. M., by one H., a stranger; that W. had then signed a property statement for an alleged hydro-carbon burner, which H. professed to be about to furnish to him. W. also signed two contracts. He denied that the signatures to the acceptance were his, and the jury having found that he did not sign the same, held, that the verdict conformed to the proof.

2.

:

: BONA FIDE PURCHASERS: EVIDENCE. On the night of January 14, 1890, H., a stranger, took the alleged drafts above described and indorsed the same and delivered them in the night season to one Wheeler, and thereupon left the county. Wheeler soon after, 9 A. M. next morning, took the drafts to a bank and had them discounted for four-fifths of their face value. The alleged acceptor lived less than three miles from the bank and apparently was solvent, yet no inquiry was made of him, nor any one having knowledge of the matter in regard to the drafts. Held, That these facts were proper to be submitted to the jury in determining the question of good faith of the purchaser.

ERROR to the district court for Phelps county. Tried below before GASLIN, J.

C. C. Flansburg, for plaintiff in error.

S. A. Dravo, Leese & Stewart, and Dilworth, Smith & Dilworth, contra.

MAXWELL, CH. J.

The causes of action are set forth in this case as follows: "Plaintiff states that it is a corporation duly organized under the laws of Nebraska. Its first cause of action is