Neskern v. Northwestern Endowment & Legacy Ass'n of Minnesota

The first question to be considered in this case is whether the complaint states a cause of action. The certificate of membership, which constitutes the contract upon which the action is brought, is set out in full, but the sufficiency of the complaint will depend upon the construction to be given to the following clause: “Peter Neskern, having complied with the conditions of membership, is entitled, to the benefit of said association (subject to the conditions hereinafter stated) in the sum of one dollar for each contributing member, not. exceeding the sum of $2,000.” Defendant’s contention is that this is not a contract to pay absolutely, but merely to make an assessment of one dollar upon each member, and, when collected, to pay the *409proceeds to the party entitled to it, and hence that the complaint shows no breach of the contract, because it neither alleges a failure to make an assessment nor that any money has been, in fact, collected upon an assessment made.

In view of the well-known character of the contracts of many of these so-called mutual-protection associations, it is possible that, if the articles of association and by-laws of defendant were set out, it might appear that this was the extent of the benefits of membership. But these articles and by-laws are neither set out in the pleadings nor introduced in evidence. Hence, we are left to construe this language of the certificate of membership by itself. There is nothing in it suggestive of the idea that defendant’s liability is dependent upon collections received from an assessment. Upon its face we think it amounts to an absolute undertaking to pay a sum of money, the amount of which is to be determined by the number of contributing members. Hence we think the complaint states a cause of action, although it neither alleges the actual receipt of money upon an assessment to meet the loss, nor a neglect to make such assessment. This, too, seems to have been the theory upon which defendant’s answer was framed, and the cause tried in the court below.

2. The only other question is, whether the evidence is sufficient to sustain the finding of the referee as to the number of “contributing” members of the association at the time of Peter Neskern’s death. The case was tried rather informally, but we think that the record clearly shows that “contributing members,” and “members in good and regular standing who had not forfeited their membership,” were assumed throughout the trial as being synonymous and convertible terms, and that every member in good and regular standing was liable to assessments. There is some evidence tending to prove this fact, and, as before remarked, it seems to have been impliedly assumed as a fact upon the trial. Hence, we think the presumption legitimate that “members in good and regular standing” and “contributing members” mean the same thing. The number of membership certificates which had been issued was prima facie evidence of the number of members, and we think the court below was right in holding that if any o.f the persons to whom these certificates were issued had *410ceased to be members by forfeiture, suspension, or otherwise, the burden was upon defendant to show it. The means of doing so are or ought to be peculiarly within its possession. To require the plaintiffs to prove a negative in the case of each person who had been received into membership, and that such person had not been suspended or had not forfeited his membership, would be unreasonable and impracticable.

Order affirmed.