constitute a good legal defense to the action, and should not therefore have been set up by an equitable plea.

The judgment appealed from must be reversed, and the case remanded for a new trial.

Judgment reversed, with costs, and case remanded for a new trial.

(105 Me. 17)

GIFFORD v. WORKMEN'S BEN. ASS'N.

(Supreme Judicial Court of Maine. Dec. 22, 1908.)

deceased was a member at the time the cer tificate was issued. Plea, the general issue.

When this action came on for trial, an agreed statement of facts was filed and the case reported to the law court for determination.

The case is stated in the opinion.

Argued before EMERY, C. J., and WHITEHOUSE, SAVAGE, PEABODY, SPEAR, and BIRD, JJ.

A. L. Blanchard, for plaintiff. E. F. Danforth, Louis C. Stearns, and Louis C. Stearns, Jr., for defendant.

1. INSURANCE (§ 719*) - MUTUAL BENEFIT – RULES. BIRD, J. This is an action brought by the Fraternal beneficiary associations can im- | administratrix of the insured to recover the pose such terms and conditions upon member- sum of $1,000 claimed to be due under a beneship not contrary to law as they may choose, fit certificate issued by the defendant, a and members must comply with those terms and conditions in order to be entitled to the fraternal beneficiary association or order, to benefits of membership. the husband of the plaintiff, John T. Gifford, deceased.

[Ed. Note. For other cases, see Insurance, Cent. Dig. 1855; Dec. Dig. § 719.*] 2. INSURANCE (§ 750*)-MUTUAL BENEFIT RULES-SELF-EXECUTING-SUSPENSION.

A rule of such an association, that a member failing to pay an assessment on or before the last day of the month in which the call is dated "shall stand suspended from all rights, benefits, and privileges of this association without further notice," is a valid rule and selfexecuting.

[Ed. Note.-For other cases, see Insurance, Dec. Dig. § 750.*]

It is among the objects of the order "to establish and maintain, for all accepted members a benefit fund, from which, on satisfactory evidence of the death of a member who has complied with all its lawful requirements a sum not to exceed the amount stated in the • • " Bycertificate shall be paid. Law 2.

By the general laws of the order it is provided that: "When an assessment is deem3. INSURANCE (§§ 755, 760*)-MUTUAL BENE-ed necessary by the executive committee, for FIT-REINSTATEMENT-PAYMENT OF ARREARS either benefit, reserve or general fund, it BEFORE MEMBER'S DEATH.

When the rules of such an association provide that a suspended member, to be reinstated, shall within 30 days from his suspension pay all arrears of assessments, such payment must be made during the life of the applicant for reinstatement. Payment of such arrears after his death by some other person will not effect the reinstatement, unless such payment be accepted by the association with knowledge of the death. [Ed. Note. For other cases, see Insurance, Cent. Dig. 88 1909, 1910, 1923; Dec. Dig. § 755, 760.*]

shall be called on the first or second day of the month, and payment by the members must be made on it before the last day of the same month to the supreme secretary in Boston, Mass." Law 7. That: "If a member fails to pay to the supreme secretary an assessment for either fund on or before the last day of the month in which the call was dated he shall stand suspended from all rights, benefits and privileges of this association without further notice." Law 8. And 4. WORDS AND PHRASES-"WAIVER." also that: "Any member who has been susA "waiver" is the voluntary relinquish-pended for nonpayment of assessments may ment of some known right, benefit, or advantage, be reinstated within thirty days from the and which, except for such waiver, the party date of his suspension by payment of all asotherwise would have enjoyed.

(Official.)

[Ed. Note. For other definitions, see Words and Phrases, vol. 8, pp. 7375-7381, 7831.]

Report from Supreme Judicial Court, Pe

nobscot County.

Action by Maria L. Gifford, administratrix of the estate of John T. Gifford, deceased, against the Workmen's Benefit Association. An agreed statement of facts was filed and the case reported to the law court. Judgment

for defendant.

Action brought by the plaintiff, as administratrix of John T. Gifford, late of Lee, deceased intestate, to recover the sum of $1,000 alleged to be due under a benefit certificate issued to the said deceased by the defendant association and of which said association the

sessments called prior to such suspension and for which he was in arrears. He shall there

upon be reinstated to all rights, benefits and

privileges from date thereof." Law 9.

The benefit certificate issued by defendant to deceased contains the following clause: "This certificate is issued upon the express condition that said John T. Gifford shall in every particular while a member of said order comply with all the laws, rules and requirements thereof."

The defendant, if liable at all, must be liable upon a contract-a contract of insurance. The terms and conditions of the contract of this defendant with its members are to be found, in part as least, in its constitution and laws. It had a right to impose

ner,

of some known right, benefit, or advantage, to the skill and services of the surviving partand which, except for such waiver, the party (2) That in this respect the decree of the prootherwise would have enjoyed. Stewart v. bate court must be modified so as to require a Leonard, 103 Me. 128, 132, 68 Atl. 638. Knowl- division of the profits from the Gurnee and Doe edge of the existence of the right, benefit, or contracts according to the capital contributed advantage on part of the party claimed to after deducting so much of them as may fairly be attributed to the services of the surviving have made the waiver is an essential prereq-partner for which he has not received adequate uisite to the relinquishment. North Ber-compensation in the commission of 5 per cent. wick Co. v. N. E. F. & M. Ins. Co., 52 Me. 336, on $26,959.38 allowed him by the judge of pro340, 341; Williams v. Relief Association, 89 Me. 158, 164, 165, 36 Atl. 63; Swett v. Relief Society, 78 Me. 541, 545, 7 Atl. 394; Phoenix Life Ins. Co. v. Raddin, 120 U. S. 183, 196, 7 Sup. Ct. 500, 30 L. Ed. 644. "One cannot be said to waive that which he does not know." Marcoux v. Society, etc., 91 Me. 250, 258, 39 Atl. 1027, 1030.

It is admitted that at the time of the receipt of the payment made by the son of deceased the defendant had no knowledge either of the death of John T. Gifford, or that the payment was made by his son, a beneficiary, and not by himself. There was no waiver by reason of the acceptance of the assessment paid by the son of deceased after, but in ignorance, of his death. Williams v. Relief Association, 89 Me. 158, 36 Atl. 63. There is no evidence in the case upon which the doctrine of estoppel can be invoked by plaintiff.

In accordance with the agreement of the parties, judgment is to be entered for the defendant.

Judgment for defendant.

(104 Me. 516)

WHITTAKER v. JORDAN.
JORDAN v. WHITTAKER.
(Supreme Judicial Court of Maine.
Dec. 14,
1908.)
PARTNERSHIP (§§ 249, 255*)-SURVIVING PART-
CONTINUING BUSINESS-DIVISION OF
PROFITS-TAKING OVER PERSONALTY.

NER

bate.

(3) That in the absence of any agreement that the surviving partner should take over the personal property at the appraisal, he was not entitled to the benefit of any difference there might value of the property, but should charge himself be between the appraised value and the actual in his account with such increase in value.

[Ed. Note. For other cases, see Partnership, Cent. Dig. 88 529, 559; Dec. Dig. § 249, 255.*1 (Official.)

Appeal from Supreme Judicial Court, Hancock County.

Eben K. Whittaker, surviving partner of the firm of Jordan & Whittaker, having filed his second account as surviving partner, which was opposed by Harriet E. Jordan, executrix of Albion F. Jordan, the deceased member of the partnership, and the judge of probate having declined to allow the same, he appealed. Harriet E. Jordan, executrix of Albion F. Jordan, deceased member of the partnership of Jordan & Whittaker, filed a petition in the Supreme Court for leave to enter an appeal from the decree of the judge of probate allowing the first account of Eben K. Whittaker, surviving partner, as such. Both cases were heard together and reported to the law court. Appeal sustained. Petition dismissed.

Two cases involving a consideration of the same facts and circumstances. The firstnamed case is an appeal by Eben K. Whittaker, surviving partner of the late firm of Jordan & Whittaker of Bar Harbor, and who had given bond to settle the partnership affairs, from the decree of the judge of probate declining to allow his second account as surviving partner and directing an amendment of the same. The last-named case is the petition of Harriet E. Jordan, widow, sole executrix and sole residuary legatee of Albion F. Jordan, the deceased member of the aforesaid partnership, for leave to enter an appeal from the decree allowing the first account of the surviving partner. The petitioner alleged "that through accident, mistake, defect of notice, and other reasons, without fault on her part, she omitted to claim her appeal within the 20 days provided for claiming appeals, and that justice requires a revision of said decree." This petition was filed in the Supreme Judicial Court, Hancock county, sitting as the supreme court of probate.

The surviving partner of a firm of contractors and builders, with the acquiescence of the executrix of the deceased partner's will, continued after such dissolution of the partnership to use the plant, materials, and capital of the firm to prosecute and complete the work of reconstructing a cottage known as the "Gurnee job," commenced prior to the death of the testator, and also to make repairs upon another building known as the "Doe job," pursuant to an engagement made prior to the dissolution of the firm. By the decree of the judge of probate, the surviving partner was ordered to account for the entire net profits derived from the Gurnee and Doe contracts without any deduction for the services and money which he contributed to the earning of such profits. It also appeared that the surviving partner, who had given bond to settle the partnership affairs, omitted to charge himself in his account with the gain represented by the difference between the appraised value and the actual value of the personal property. Held: (1) That inasmuch as the good faith of the surviving partner was not impeached, the most that the representatives of the deceased partner can justly demand is that the profits should be divided according to the capital after deducting such share of them as is attributable both cases were reported to the law court

Both cases were heard together at the April term, 1908, of said Supreme Judicial Court sitting as the supreme judicial court of At the conclusion of the evidence probate.

with full power on the part of that court to
make such decrees as the sitting justice
would have.

The cases are stated in the opinion.
Argued before EMERY, C. J., and WHITE-
HOUSE, SAVAGE, PEABODY, SPEAR, and
BIRD, JJ.

Charles H. Wood and John A. Peters, for

Whittaker. Luere B. Deasy and Bertrand E.
Clark, for Jordan.

pealed, claiming that he was not obliged to account for any profits received by him on these jobs after the death of his partner, and that the commission charged was just and reasonable.

It appears that the firm owned a mill, shop, storehouse, and stable with the land on

which they stood, situated at Bar Harbor, suitably equipped with machinery, appliances, and materials, to enable the firm to carry on a building and contracting business. Soon after the death of Mr. Jordan, this esWHITEHOUSE, J. These two cases come tate was appraised at $11,376, and the perup on report; the law court to have full pow-sonal property (other than rights and credits) er to make such orders and decrees as the at $8,161.60. sitting justice would have. They involve a consideration of the same facts and circumstances and are to be determined upon the same evidence. The following facts appear from an agreed statement of the parties and evidence introduced:

Prior to March 14, 1906, Eben K. Whittaker and Albion F. Jordan were partners doing a building business at Bar Harbor. On that date Mr. Jordan died leaving a will, which has been duly probated, and a widow, Harriet E. Jordan, who is his executrix and sole legatee. Mr. Whittaker gave bond as surviving partner and proceeded to settle the partnership affairs. He has filed two accounts. In the first account, which was allowed September 3, 1907, the surviving partner charged and was allowed commissions at 5 per cent. on $26,959.38. Mrs. Jordan as executrix has petitioned the Supreme Court for leave to enter an appeal from the allowance of this first account on the ground that the commission charged and allowed was excessive, and on the further ground that the surviving partner used the capital of the partnership in his own business after the dissolution of the partnership by death, and that he has failed to account for the profits received by him for such use.

With respect to the Gurnee job referred to in the decree of the judge of probate dated January 7, 1908, the case shows that at the death of Mr. Jordan the firm was engaged in altering and repairing Mr. Gurnee's cottage at Bar Harbor by virtue of a contract under which the firm was to furnish the necessary labor and materials, and Mr. Gurnee was to pay to the firm a profit on both. The entire job involved an expenditure of about $30,000. In performing this work all of the assets and capital of the firm above described were employed, and at the time of Mr. Jordan's death about one-third of the work had been completed. After his decease the prosecution of the work was continued by the surviving partner, substantially as before. The entire plant and establishment of the firm and all materials on hand suitable and necessary for the purpose were used by him to complete the work. All money received from this job up to the time of the death of Mr. Jordan was properly credited to the firm, but all money received from the job after his death was appropriated by the surviving partner under a claim of right and never accounted for by him.

The Doe job consisted of repairs made on the inside of a store at Bar Harbor, but the work had not been actually commenced at the time of the death of Mr. Jordan. The services of the firm had been engaged during the lifetime of Mr. Jordan. There was never any entire contract respecting the work either with the firm or the surviving partner; but Mr. Whittaker sold materials and furnished labor to Mr. Doe to the amount of about $1,300, charging a profit on both, and, as in the case of the Gurnee job, he used the plant of the establishment and some of the materials belonging to the firm in performing the work.

The surviving partner filed his second account in October, 1907, and in that account charged a commission of 5 per cent., amounting to $413.26, on $8,265.22 received by him in cash subsequent to the first account and, as before, credited the estate with nothing for the use of the property formerly of the partnership. After hearing in the probate court, a decree was entered by the judge in which he found that all the items in the account, except the commission of $413.26, were just and true, and that as to that item a determination could not be made at that time, and that it should be struck out without prej- It is contended by Mr. Whittaker that he udice. The judge further ordered that the was entitled to use and employ all of the asaccount be amended, and that the surviving sets of the firm in his hands as surviving partner should charge himself and give cred- partner, except the money, and appropriate it to the estate for the profits derived by the to his own use all of the profits derived theresurviving partner after March 14, 1906, on from in connection with these two jobs, and certain jobs of repairing and alteration is not to be held accountable for such use known as the "Gurnee job" and the "Doe either in the form of a portion of the profits job." or by way of rent or compensation. In his