Sumerlin v. American Fraternal Stars

(after stating the facts). Counsel for appellant contends:

First. That after the agreement of the supreme secretary to see to it that the assured did not lapse out, that the order is not in a position to insist that he did- lapse.

Second. That the assured had not been suspended, because no formal action suspending him had been taken.

Third. That the action of the order in accepting payment on the 8th of January, in retaining that payment. until the 8th of May, and in asking for proofs of loss and additional proofs of loss, involving the expenditure of time and money by the plaintiff, that the order waived any right to insist upon a forfeiture.

1. Assuming for the purpose of the case (though the question is in dispute), that Loomis, the supreme secretary, promised to remind the assured when he was in default in order that his policy should not lapse, we are of opinion that the contention of counsel for plaintiff cannot be sustained. This action is based upon a written contract and the rights of the parties must be determined according to its tenor. By that contract the insured undertook to make the payments before 10 o’clock p. m. on the last day- of each calendar month. It would, we think, be a dangerous practice to permit the substitution of a verbal agreement for the written contract, even though the same were undisputed, which is not the situation in the case at bar.

2. We are of opinion that the provisions of section 1 of article 10 are controlling and that the words: “shall be suspended from the order and his policy shall become null and void,” are self-executing. Counsel for appellant cites in support of this contention the following cases: Petherick v. Order of the Amaranth, 114 Mich. 420; Dick v. Order of the Amaranth, 150 Mich. 215; and Roulo v. Schiller Bund, 172 Mich. 557. An examination of these cases will demonstrate that the provisions relative to suspension in the policies *159there under consideration differed from those provisions in the policy in suit. They are therefore not controlling.

3. The provision of section 1, article 12, which states that the furnishing of blank proofs of death shall not be construed as a waiver of any of the rights of the order, disposes of this contention.

This case upon its facts is much like the case of Edgerly v. Ladies of the Modern Maccabees, 185 Mich. 148, and is controlled by the same legal principles.

The judgment is affirmed.