In Error to the Circuit Court of the United States for the Northern District of California.

This is an action at law brought by George W. Beatty, defendant in error (plaintiff below), as beneficiary in a certain certificate or contract of insurance issued by the plaintiff in error on the life of Edwin L. Smith, of San Francisco, Cal. It is alleged in the complaint “that on the 15t.h day of May, 1884, at the city of New York, state of New York, said defendant made and issued its certificate of membership to one Edwin L. Smith, of the city and county of San Francisco, state of California, in consideration of certain matters and payments in said certificate mentioned, and hereby referred to; for the use and benefit of the plaintiff herein, George W. Beatty (creditor), by which said certificate said defendant insured the life of said Edwin E. Smith in the sum of $4,000, payable to the plaintiff herein, George W. Beatty, as his interest may appear, if living at the time of the death of said Smith, otherwise to the legal representatives of said Smith, within ninety days after receipt of satisfactory evidence to the said defendant of the death of said Smith during the continuance of said certificate, upon certain conditions in said certificate contained; that on the 10th day of December, 1890, at the city of Oakland, county of Alameda, state of California, said Edwin L. Smith died .intestate, a resident of Alameda county, California; that said plaintiff, George W. Beatty, paid the admission fee, all dues for expenses, and all mortuary assessments mentioned in said certificate, as required by it to be paid, up to the 3d day of May, 1889, amounting in the aggregate to $1,013.07, and offered and was ready to pay all subsequent dues and assessments, but that said defendant willfully refused to receive the same, and said plaintiff gave to said corporation defendant immediate notice of the death of said Edwin L. Smith, and also on or about the 15th day of January, 1891; plaintiff gave and furnished to said corporation defendant, in writing, at its place of business in the state of New York, satisfactory evidence of the death of said Smith, * *

The trial of the cause was liad before a jury. It appears from the testimony that the certificate in, question was issued May 15j 188-1, and the assessments levied thereon by (he plaintiff in error prior to the assessment in controversy wore 28 in number, and were designated as mortuary calls numbered 15 to 42. inclusive, amounting to $981.50. There were also dues for expenses amounting to the sum of $8 for each of 1he years 1884, 1885, 1880, 1887, and 1888, amounting to $40. These assessments and dues for expenses were paid by the defendant in error, the insured contributing a portion of the funds required to meet the demands as they came due. Mortuary call No. 43 was for $39.12, and was made on April 1, .1889, becoming due May 1, 1889. The dues for expenses for 1889, amounting to $8, were due on May 0, 1889. On May 3. 1889, the defendant in error tendered payment of both claims, in the sum of $47.12, to the local agent of the plaintiff in error at San Jose, Oal., who refused to accept the same on behalf of the company, but did receive the amount on deposit in the bank with which he was connected, giving a conditional receipt therefor, and reported the matter to the home office of the association, in the East. The association declared the contract of insurance forfeited by the failure of the defendant in error to pay mortuary call No. 43 within the period of 30 days provided in the notice.

The plaintiff (defendant in error here) was called as a witness on his own behalf, and restifled, among other things, that he was the party named in the certificate .of insurance as the beneficiary; that he had paid six calls or assessments after they became due, to wit: “Call No. 16 was paid 34 days late; that is, it was received in New York 34 days after it should have been,— the health certificate being given. Call No. 17 was received 9 days after time. I paid them directly to the company in New York. Gall No. 20 was paid_5 days late, direct to New York, with a common receipt. Call No. 25 was paid to the home office, in New York, 49 days late. Call No. 42 became due, under the notice, March 4, 1889. I paid it on March 20, 1889. The notice of call No. 43 reached me the first week in April, hive notices were received before the money was received in New York of a subsequent assessment. As to call No. 43, I was in Los Gatos at the time, and on the last day of April there was a legal holiday, which prevented my entering the bank. I went to the bank, and could not enter. On the 1st day of May they had a local celebration of' some kind, and the bank at Los Gatos was closed. It was May Day. I could not draw the money to pay the assessment. On- .the 2d I drew the money, and started for San Jose, but on my way I was called to see one of my parishioners, and was detained some little time. Reached San Jose a few minutes after 3 o’clock. Found the bank closed. Asked some gentlemen who were standing there if they knew where Mr. Park lived [Park was local agent at San Jose], but they did not seem to know; and, having paid others late, I believed it would make no difference, so postponed it until next morning. I called in the morning, after the bank opened, about 10 o’clock, and received a conditional receipt from Mr. Park for $39.12, the amount of that call. I paid the annual dues on May 6th, when they fell due. Between that time and the date of Mr. Smith’s death I wrote to them several letters, and received several letters from them. I am positive I received notice-of call No. 44. I am under the impression I received 45, because of my correspondence. I am not certain as to 45. When I got 44, I went to see Mr. Park, the local treasurer of the company, and tendered him the payment for-that. He refused to accept it, saying that the money for No. 43 was still in his hands, and there was no need to take any more until he had come to some understanding about that. These notices of mortuary calls were substantially the same. They would vary in relation to some statements about the condition of the society. Otherwise they were the same. At the time that this, application for insurance was made, which I think was in February, 1884, Mr. Smith owed me about $5,000, counting interest. He never paid that, nor-any part of it. He paid for a time, after 1884, $60 .a year on interest. Mr. Smith died on December 10, 1890. I communicated that fact to the'company immediately, and sent them proof of death.” Upon cross-examination the witness testified: “I forwarded the money for call No. 26 from Boston. I was not in San Jose. I was pastor there, but had gone East. I cannot recall the circumstance how this.call happened to be forwarded late. I was in New York. I called for the secretary, and he introduced the assistant. I spoke to him about my difficulty, and the distance to California, and getting money there in time,' and in that conversation he said they were not particular, as the places were far distant in California; that a few days did not seem to make any difference. I told him this one I should forward from there. I don’t know that I have any reason for the .cause of my delinquency. I tried to-forward them in time, but I did not always do- it. Call No. 42, which was due and payable on the 3d of March, was paid on or about the 20th of March, 1889, to Mr. Park. At the time I handed him the money for that call, he said something about my being late. He asked me for a certificate of health, which I refused to give, saying I did not think I should have him re-examined every month or two. He was getting to be an old man, and I thought it was not just. He gave me the receipt. He did not tell me at that time that he would receive the money conditionally. There was some conversation about the certificate of health, but I objected to giving it. I did not write to the company about it. It was already paid. The reason why I left the payment of call 43 to -the last moment was because I thought and believed, from their past dealihgs, that, inasmuch as I could not get there, it would be immaterial. That is one reason. The other reason was, I was building a church, and was exceedingly busy, and money was scarce at times, so I postponed it late, for several reasons.”

Tho deposition of Frederick T. Braman was taken on behalf of the defendant. He testified, substantially, that he was the secretary of the defendant; that there was default made in the payment of mortuary call No. 42, while said Smith was a member; that this call became due March 4, 1889, and was paid on March 20, 1889, whereupon defendant sent a certificate of health, to be signed by the said Smith and returned to defendant, which plaintiff refused and wholly failed to do; that mortuary call or assessment No. 16 was due and payable within 30 days from October 1, 1884; that it was not paid or tendered io the association within that time, but was subsequently tendered and accepted, and the policy reinstated, under and subject to the terms and conditions of a health certificate, and the receipt issued thereupon; that the health certificate was furnished, and the delinquent payment accepted and receipt issued on December 5, 1884; that mortuary call or assessment No. 17. was due and payable within 30 days from the 1st day of December, 1884; that it was not paid or tendered within that time, but was forwarded to and received by defendant on January 10, 1885; that it was accepted, and the policy reinstated conditionally, and dependent upon and subject to the terms of the conditional receipt which was issued and forwarded to, and accepted by, the plain!iff; that mortuary call or assessment No. 20 was due and payable within 30 days from June 1, 1885; that it was not received by the association until July 6, 1885, but, inasmuch as the postmark upon the letter in which it was inclosed showed that it had been forwarded within the 30 days allowed, it was accepted by the association as though actually received within the 30 days’ grace, it being- the rule of the association, in such eases, to regard the payment as made on the day the remittance is mailed, and, if so mailed within the time allowed, tho payment; is considered as made in time, and a regular receipt issued therefor, although the remittance may not be actually received at the homo office until after the expiration of the time; that mortuary call or assessment No. 25 was due and payable within 30 days from the 1st day of April, 1886; that it was not paid or tendered until June 8, 1886, when it was accepted and the policy reinstated only upon a health certificate being- furnished; that mortuary call or assessment No. 26 was due and payable within 30 days from the 1st day of June, 1886; that a, remittance was received within that time, which apparently covered the amount of this call under the policy In question; that mortuary call or assessment No. 42 was due and payable within 30 days from February 1, 1889; that it was not tendered or paid until March 20, 1889, when it was received conditionally, pending the furnishing of a health ecrl ideate, and subject, io such certificate being satisfactory to, and accepted by, the association.

O. T. Bark testified on behalf of the defendant, in substance, among-other things, that he was the local agent of the association at San Jose, Cal.; that he remembered when call 42 was made, and explained the cireums!anees of its payment as follows: “Plaintiff’s Exhibit D [being C on this trial] is the

receipt I gave him. It came to be given in this way: This call was due about March 1, 1889. lie did not come to pay it within the time mentioned for the payment of that call. Ho came after this call was due, and offered me the money, which T declined to receive, for the reason that tho instructions were very definite and specific. * * * Mr. Beatty offered this money to me after the expiration of ilie time mentioned for that call, and I declined to receive it and issue (he receipt. I told him I would receive the money as an individual, or as ail officer of tho bank, and retain it for him, and notify the company that he had tendered it, and, if they instructed me to issue a receipt, I would do so. The company wrote back to me, instructing me to accept this payment, and requested me, at the same time, that Mr. Beatty should furnish a certificate of health. Mr. Beatty declined to furnish such a certificate, and I interpreted the instructions to mean to obtain it if possible. At all events, on the 20th clay of March I issued ibis receipt, and remitted the amount to the company.”

The foregoing is a sufficient reference to the testimony to explain the questions that will be discussed.

Upon the conclusion of tho testimony, counsel for defendant moved the court to instruct the jury to return a verdict for the defendant. This instruction the court refused to give, and thereupon gave the instructions contained In the record. The instructions to which exceptions were taken will be referred to later on in this opinion. The jury rendered a verdict in favor of the plaintiff (defendant in error) for $3,503.68, with interest and costs.