(108 A.) 2. INSURANCE 739-MEMBER NOT IN DE FAULT IN PAYMENT OF DUES TO FRATERNAL Where the dues of a fraternal and benefit association for a quarter were payable "on or before the last meeting night of March," they were not demandable prior to the last meeting night of March, and a member who had not paid such dues was in good standing until such time. 3. INSURANCE 819(2)-FRATERNA, BENEFIT ASSOCIATIONS; EVIDENCE SHOWING GOOD STANDING AT TIME OF DEATH. In an action to recover benefits from a fraternal and beneficial association, evidence held to sustain a finding that plaintiff's deceased was in good standing at the time of his death. ualty company by registered mail a written | his death, the fraternal and beneficial associastatement of such default within 10 days, tion could not avoid payment of such anıount to such notice being a condition precedent to re- the heirs of a deceased member in good standcovery on the contractors' bond as provided ing, on the ground that it had not itself received by its terms, and that the verdict should such sum from the funeral benefit association. therefore be for the defendant casualty com- where the reason for its not receiving such sum was that it had erroneously represented to the pany. There is a provision of that nature in funeral benefit association that deceased was the bond, but it is not available as an ab- not in good standing at the time of his death. solute bar to recovery, as there is evidence tending to support the theory that it was waived. The contract was dated December 1, 1916, and the work was started several weeks later, as the plaintiff's witnesses testified. On February 16, 1917, the plaintiff's secretary wrote a letter to the casualty company. notifying it that the terms of the contract were not being carried out, and asking the company to make an investigation. In its reply the casualty company made no point that the notice was not given within the time prescribed by the bond, but stated that the matter would have its immediate attention. On May 7, 1917, a letter was written to the casualty company by Mr. Wyman, as counsel for the plaintiff, reminding the company of the previous notification that the contract was not being complied with, and stating that he had been authorized to bring suit, but before doing so he would like to confer with the company's representative. Replying to this letter, the company stated that it would make a full investigation, and report what could be done to arrange the matter satisfactorily. This correspondence furnished legally sufficient evidence of a waiver of the bond provision to which the fifth prayer refers, and it was properly refused. Citizens' Mut. Fire Ins. Co. v. Conowingo Co., 115 Md. 439, 77 Atl. 378; Id., 116 Md. 422, 82 Atl. 372; N. Y. P. & N. R. Co. v. Produce Exchange, 122 Md. 234, 89 Atl. 437; Id., 130 Md. 106, 100 Atl. 107; M. & M. Trans. Co. v. Eichberg, 109 Md. 211, 71 Atl. 993, 130 Am. St. Rep. 524. [8] The rejection of the tenth prayer was not injurious, as the theory it involved was sufficiently presented by the ninth prayer, which was granted. Appeal from Court of Common Pleas of Baltimore City; James M. Ambler, Judge. "To be officially reported." Suit by Elizabeth Klug against Washington Camp No. 32, Patriotic Order Sons of Judgment for plaintiff, and defendant appeals. Affirmed. America. Argued before BOYD, C. J., and BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and ADKINS, JJ. Willis E. Myers, of Baltimore (John F. Oyeman, of Baltimore, on the brief), for appellant. Lewis Hochheimer and William H. Lawrence, both of Baltimore, for appellee. URNER, J. The appellant is a fraternal and beneficial association, and the appellee's husband, Thomas J. Klug, was one of its members from August, 1900, until his death None of the rulings show reversible error. on March 10, 1917. This is a suit by the Judgment affirmed, with costs. (135 Md. 199) WASHINGTON CAMP NO. 32, PATRIOTIC Where a fraternal and beneficial association had a membership in a funeral benefit association that paid a certain amount to the heirs of a deceased member of the fraternal and beneficial association in good standing at the time of widow to recover a funeral benefit fund of $250 to which she claims to be entitled under the by-laws of the order, and the appeal is from a judgment rendered on a verdict in her favor for that amount. The only question in the case is whether the husband was in arrears as to the payment of dues to such an extent as not to be a member in good standing at the time of his death. The by-laws then in force provided that the dues, of members, of the insurance class to which Mr. Klug belonged, should be $10.25 per annum "payable quarterly on or before the last meeting night in March, June, September and December," and that a member allowing his account to remain unpaid eleven weeks should be notified by the financial secretary of his indebtedness, and should at For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the same time have his attention "called to the fact that, after he is thirteen weeks in arrears, he forfeits all privileges except admission to camp room; nor shall he be entitled to receive sick benefits for a period of six weeks after all arrearages to date are paid." On the subject of funeral benefits, the by-laws provide: receipt of the benefit money from the designated source, it cannot rely upon the fact that it did not receive the money as a ground of exemption from liability. Rumsey v. Livers, 112 Md. 546, 77 Atl. 295, and cases there cited. [2, 3] The statement of Mr. Klug's dues account, which accompanied the certificate pre "So long as this camp shall retain its mem-sented to the Maryland Death Benefit Asbership in any funeral benefit associations, there shall be paid to the heirs of a deceased brother the full amount received from the said associations in which he had been enrolled by the camp, less the costs of claim and all other charges legally due this camp at the time of death, provided the brother was in good standing at the time of death, and all requirements exacted by the laws of said funeral benefit associations have been complied with." It was proven that the appellant was a member of the Maryland Death Benefit Association, in which also it caused Mr. Klug to be duly enrolled. The by-laws of that association provide, in part, as follows: * * sociation, showed his indebtedness at the time of his death, on March 10, 1917, to be $3.26. But this included a charge of $2 as an apportionment of the dues for the current quarter, which had not yet expired and the dues for which had therefore not matured under the terms of the appellant's by-laws. The dues for that period were payable "on or before the last meeting night of March," and hence were not previously demandable. 21 R. C. L. p. 12; 13 C. J. 584; 8 C. J. 400; 9 Cyc. 610. If this error had not been made in the account, it would have shown a balance due of only $1.26. This was less than half of three months' dues, which amounted to $2.63. It required an indebt"The funeral benefits payable by the associa-edness of that amount, according to the bytion upon the death of a member of an organiza- laws of the death benefit association, to detion holding membership and in good standing in this association shall be as prescribed in the prive a member of beneficial standing. If following sections of this article, provided the account of Mr. Klug had been correctly * that the said member was in good reported to that association, it would have standing in his or her organization. had no occasion to refuse payment of the A deceased member of an organization having funeral benefit. The failure of the appellant membership in this association shall be held and to collect the fund is consequently not a sufconsidered in beneficial standing in his or her ficient defense to this action. Nor does the organization at the time of his death, providing record require the conclusion that under the appellant's own by-laws the insured member was so far in arrears that his widow must lose the benefit of the insurance which his membership in the order was intended to provide. While it appears that he owed $3.26 on December 26, 1916, the amount was reduced to $1.26 by the payment of $2 on January 29th following, and there is testimony that the financial secretary acknowledged Mr. Klug to be in good standing at that time. The financial secretary denied having made such a statement, but there is other testimony from which it may be inferred that the beneficial standing of the appellee's husband was preserved, and recognized by the order, down to the time of his decease. that he or she did not owe three months' dues, or over, at the occurrence of such sickness or accident, which caused death. * [1] It is conceded that, if Mr. Klug was in "good standing" in the appellant order when he died, the sum of $250 was collectible by it from the death benefit association and payable to the appellee. A formal claim for this funeral benefit was presented by the appellant to the death benefit association, but the claim certificate, as prepared by the appellant's officers, included a statement that Mr. Klug was not in good standing in that order at the time of his death, and because of this representation the payment of the benefit was refused. Not having received the fund from the other organization, the appellant contends that it is not liable to make payment to the beneficiary. This defense is valid only in the event that the appellant correctly made the statement as to Mr. Klug's delinquency on account of which it failed to receive the fund from the death benefit association. If the appellant erroneously represented the insured not to be in good standing, and thus by its own act prevented its The question we have considered was raised by certain rejected prayers which opposed recovery on the grounds referred to, and which form the subject of the only bill of exceptions in the record. Instructions were granted submitting the issue of fact as to the decedent's standing in the order to the determination of the jury. Judgment affirmed, with costs. (135 Md. 158) (108 A.) MURPHY et al. v. STUBBLEFIELD. (No. 14.) (Court of Appeals of Maryland. Nov. 21, 1919.) 1. APPEAL AND ERROR 1050(1)-ADMISSION OF EVIDENCE HARMLESS IN VIEW OF OTHER EVIDENCE ADMITTED WITHOUT OBJECTION. Error of the court in overruling an objection to a question was harmless, where the same evidence was admitted without objection. 2. GUARANTY 32-GUARANTORS OF NOTE LIABLE TO HOLDER IN DUE COURSE. A purchaser of a note before maturity in good faith and for value, without notice of any defect in the title of the seller, may sue guarantors, who indorsed an absolute guaranty on the note; the guaranty passing with the note. Appeal from Superior Court of Baltimore City; Carroll T. Bond, Judge. "To be officially reported." Action by Thomas W. Stubblefield against William J. Murphy and others. Judgment for plaintiff, and defendants appeal. Affirmed. Argued before BOYD, C. J., and BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and' ADKINS, JJ. John L. G. Lee, of Baltimore (J. Albert Baker, of Baltimore, on the brief), for appellants. Watson E. Sherwood, of Baltimore, for appellee. THOMAS, J. This is the second appeal in this case, the first appeal having been decided in 133 Md. 23, 104 Atl. 259, and the suit is by the holder or indorsee of the two promissory notes referred to in Dolph V. Stubblefield, 108 Atl. 488 (No. 13 Appeals, of this term), against the guarantors of said notes. The case and No. 13 Appeals were argued together in this court, the records contain practically the same pleadings and the same evidence, the prayers and exceptions thereto are the same, the first exception to the evidence is the same as the first exception in No. 13, and the brief of the appellant in No. 13 was refiled in this case. [1] The second exception is to the ruling of the court below permitting the witness Robinson to answer the following question on cross-examination; "You then went to Mr. Stubblefield to sell this note, I presume?" In answer to the question the witness replied: "Whether you call it selling it or discounting it, I don't know; but I went there to get the money." Even if the question could be regarded as objectionable on cross-examination, the ruling of the court could not amount to reversible error, as the same evidence was admitted without objec tion. The evidence objected to in the third ex ception was clearly admissible to rebut the testimony of Mr. Robinson that he told the plaintiff that Mr. Bracey had an interest in the notes. Smith H. Bracey testified that the notes were made by Fred A. Dolph "and indorsed by the people whose names are on the back of the notes"; that he paid for them, and that they belonged to him; and that he gave them to Mr. Robinson "to get discounted," and told him if he could get them discounted he could take out the $700 he Owed Robinson. Mr. Robinson testified that Mr. Stubblefield explained to him that he could not discount or loan money on notes, and that he could only buy them, and that when Mr. Bracey gave him the notes "I had the point-blank authority to make the best deal I could." It is said in 20 Cyc. 1434, speaking of the transfer of notes with a guaranty indorsed thereon: "The courts do not agree as to whether such transferee, being innocent, takes the guaranty free from the equities of the guarantor," and that the better rule is that he takes subject to defenses which "existed between the original parties." In 14 Amer. & Eng. Ency. of Law, 1158, the author says: "According to a number of decisions, a guaranty indorsed on a note which is general and unrestricted in its terms passes with the title. to the note, and in the hands of a bona fide holder is not subject to any defenses which may be set up as between the original parties. It is said in such case the guaranty runs with the instrument on which it is written and partakes of its quality of negotiability, that any person having the legal interest in the principal instrument takes in a like manner the incident, and the guaranty may be sued upon." After referring to cases holding that such a guaranty cannot be transferred to a third person, it is further said: "There yet remains to be considered a third class of decisions, which seems to stand on middle ground between the two classes already cited. Briefly stated, the rule laid down by these decisions is that the transferee of a note on in his own name, but that the assignee takes which a guaranty is indorsed may sue thereon it subject to all the defenses which might have been interposed against it in the hands of the assignor." In 2 Daniel on Negotiable Instruments (6th Ed.) § 1777, we find this statement: "But, on the other hand, there are cases which maintain that, although the guaranty on the paper, written at the time of delivery, specifies no person to whom the guarantor undertakes to be liable, and has no negotiable words, it runs with the instrument to which it refers, partakes of its quality of negotiability, and any person having the legal interest in the instrument takes in like manner the guaranty as an incident, and may sue thereon. And it has For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes TELEPHONE CO. (265 Pa. 181) been said, in such a case, 'this view is consistent with the nature of the transaction, the evident ERIE COUNTY ELECTRIC CO. v. MUTUAL intention of the parties, and the objects and uses of commercial paper.' This seems to us the better doctrine. By writing the guaranty (Supreme Court of Pennsylvania. on the paper, the guarantor evidences his in 1919.) June 21, tention to guarantee the contract of the maker. 1. INDEMNITY 13(3)—NEGLIGENCE OF ELEC That contract, being negotiable, is made with any and every person who may be the holder, and the guarantor is thus brought in privity with any and every person who becomes the holder. The foregoing views of the text were recently approved in Indiana, in the case of a note where, above the name of the payee and indorser, were written the words, 'We jointly or severally, for value received, hereby guarantee the prompt payment of the within note,' signed by two persons, and suit was brought by the indorsee of the payee against the guar antors." TRIC LIGHT COMPANY BAR TO RECOVERY OVER Where a telephone lineman, while repairing In the case of Wood Machine Co. Ascher, 103 Md. 133, 62 Atl. 1023, 115 Am. St. Rep. 343, this court, quoting from Hungerford v. O'Brien, 37 Minn. 307, 34 N. W. 161, said: "The liability of the guarantor thus becoming absolute by nonpayment of the note, the neglect of the holder to pursue such remedies as he might have against the maker (the guarantor not having required him to act) would not discharge the already fixed and absolute obligation of the guarantor, nor would neglect to notify the guarantor of the nonpayment have such effect." [2] The guaranty in this case, like the one referred to in Wood Machine Co. v. Ascher, is an absolute one, and we said on the former appeal: "The present defendants were clearly liable upon these notes whether viewed as indorsers or guarantors" -thereby distinctly recognizing the right of the holder to maintain the suit in his own name against the guarantors. The notes sued on, upon the indorsement in blank by Fred A. Dolph, the maker, became payable to bearer, and the second prayer of the plaintiff must have been granted in this case upon the theory that, if the plaintiff purchased the note before maturity in good faith and for value, without notice of any defect in the title of H. S. Robinson, the guaranty passed with the notes, and the plaintiff took them free from any defenses against them in the hands of Robinson. This would seem to be in accordance with the better rule, on the theory that the guaranty partakes of the quality of the instrument on which it is written. The other exceptions in this case are disposed of in the opinion filed in No. 13 Appeals, and, as there are no reversible errors in any of the rulings of the court below, the judgment will be affirmed. Judgment affirmed, with costs. BROWN, C. J. [1] The pole lines of the Erie County Electric Company and the Mutual Telephone Company are on the east side of Sassafras street, in the city of Erie. At a certain point along these lines the telephone company erected a pole, which passed between the wires of the electric company. It extended fifty feet above the ground. The poles of the electric company were but 30 feet high; its wires being lower than those of the telephone company. After erecting the high pole the telephone company attached wires of the electric company to it by a bracket; the nearest wire being but 31⁄2 inches from the pole. In June, 1911, Herman (108 A.) erly insulated; for it is presumed to have known that not only its employés, but those of the telephone company, in the lawful performance of their duties, might climb up the pole (Fitzgerald v. Edison Electric Illuminating Co., 200 Pa. 540, 50 Atl. 161, 86 Am. St. Rep. 732; Hipple v. Edison Electric Illuminating Co., 240 Pa. 91, 87 Atl. 297); and, if the wire had been properly insulated, no injury could have resulted from contact with it. Phillips, a lineman employed by the tele- that company to have its wire there propphone company, ascended the pole in question to repair a broken telephone wire and remedy some other trouble on the line. He climbed up the pole until his left shoulder came in contact with the appellant's hightension wire attached to the bracket, when he was shocked and fell to the ground, sustaining injuries from which he died. His widow brought suit against the electric company, claiming that the death of her husband was due to its negligence. The appellee was notified by it to appear and defend in the suit, as the appellant would hold it liable for any damages recovered. The appellee refused to appear. The jury returned a verdict for the plaintiff, upon which judgment was subsequently entered. On appeal to this court it was affirmed. Phillips v. Erie County Electric Co., 249 Pa. 445, 94 Atl. 1070. The appellant, having paid the amount of the judgment, interest and costs, brought this suit to collect from the appellee the amount paid, with interest and necessary expenses incurred in preparing and defending at the trial. Its cause of action, as set forth in its statement, is: Nothing that the appellee did is a basis for the claim for indemnity made against it by the appellant. It had placed its poles on Sassafras street as directed by the proper municipal authorities, who had reserved the right to grant the franchise to it to occupy the street jointly with the appellant, and, prior to the death of Phillips, no question was raised by the appellant as to appellee's right to maintain the poles there, with the bracket attached to the one which he climbed. The nonsuit was properly entered, and the judgment appealed from is affirmed. (265 Pa. 281) In re KEEFER'S ESTATE. June 21, “The plaintiff was not guilty of any act of negligence by reason or in consequence of which the said Herman G. Phillips was killed. Its whole line was in perfect condition, and the (Supreme Court of Pennsylvania. death occurred solely by reason of the negligence of the said Mutual Telephone Company in carelessly attaching and maintaining the wire APPEAL AND ERROR 754(1)-APPEAL FROM of the said plaintiff to the pole of the said Mutual Telephone Company, in the manner above described, and in not leaving space between said wire and the pole of the said defendant to permit any person lawfully ascending the said pole to do so without coming in contact with said wire." By [2] The plaintiff offered in evidence as its first testimony, in support of its claim against the appellee, the entire record in the action brought against it by Vera M. Phillips. that record it has bound itself, and it is not now "at liberty to deny the principle, upon which it appears from the face of the record itself that the action was decided and the recovery had against him [it], or, in other words to prove that the recovery was wrong": Weckerly v. Lutheran Congregation, 3 Rawle, 172. Turning to that record, what does it disclose? The negligence charged against the defendant as the proximate cause of the death of plaintiff's husband was the uninsulated wire of the defendant, and, turning to the charge of the trial judge, as is proper, to ascertain what question was submitted to the jury (Follansbee v. Walker et al., 74 Pa., 306), it clearly appears that the charge of negligence upon which they were to pass was the "lack of insulation" by the electric company of its wire at the point where the deceased came in contact with it. It was the duty of 1919.) DECREE OF DISTRIBUTION DISMISSED FOR An appeal from a decree of distribution by the orphans' court, complaining of the allowance of certain claims, will be dismissed, where the final decree has not been assigned as error, as on that account the decree cannot be disturbed. Appeal from Orphans' Court, Northumberland County. Exceptions by M. L. Snyder, a creditor of decedent, to auditor's report in the estate of George W. Keefer, deceased. From a decree confirming the auditor's report, exceptant appeals. Appeal dismissed. Argued before BROWN, C. J., and MOSCHZISKER, FRAZER, WALLING, SIMPSON, and KEPHART, JJ. Charles C. Lark, of Shamokin, and M. L. Snyder, of Sunbury, for appellant. PER CURIAM. This appeal is from a decree of distribution, and complains of the allowance of certain claims against the estate of the decedent. Though there are 37 assignments of error, no one of them is to the final decree of the court below, confirming absolutely the report of the auditor. It cannot therefore be disturbed. Fulmer's Estate, 243 Pa. 226, 89 Atl. 974. Appeal dismissed at appellant's costs. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |