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he failed to pay. * * * Now * * * I, determining the relative rights of the parhope you will look on my letter with some ties; but that question is not now before us, favor and make this all right; that is, if

as no showing of any such state of facts has his insurance still runs to Lulu, his daugh been made. ter." The original of the last-mentioned let The appellant further contends that the ter was produced at the trial, but none of insanity of the assured is no excuse for the others mentioned by respondent's wit nonpayment under the contract; and, in supnesses could -be found. No further attempt port of such contention cites with others at payment of either assessments or clues the following authorities, which we think was made by the respondent or her mother,

are in point: Pitts v. IIartford Life & Annor is it claimed that any further corres nuity Co. (Cenn.) 31 Atl. 95, 50 Am. St. Rep. pondence took place. The $3.60 remitted by 96; Wheeler r, Connecticut Jut., etc., Co., 82 Mrs. Hewitt was returned by the clerk, he V. Y. 513, 57 Am. Rep. 394; Carpenter v.

, health certificate. The clerk denies receiv

56 Am. Rep. 855. In following these cases, ing any letter from Mrs. Hewitt in Decem

we are not unmindful of the case of Buber, 1901, and also denies that he wrote her

channan v. Supreme Conclave, etc. (Pa.) 35 the letter which she says she received from

.It. 873, 34 L. R. A. 436, 56 Am. St. Rep him during the same month, in which he

774, cited by respondent and which we re. promised to notify her of the assessments gard as being against the weight of authorwhen levied. is the jury found a verdict in

ity. The respondent most vigorously confaror of the respondent, they necessarily be

tends that, as she was misled by the act of lieved the statements of her witnesses, and

the lerk of the local camp, the appellant we must accept the same as true.

had no right to forfeit the certificate, and The contention of the respondent is that

that it should be estopped from pleading tlie appellant had no right to suspend Sher

such forfeiture. Were we to concede that idan for nonpayment of dues or assessments,

the clerk had power to bind the appellant he being to appellant's knowledge insane when he agreed to notify respondent's mothand unfit for business; that appellant's

er of assessments as levied, and should we agent, the clerk of the local camp, failed to

also hold that the beneficiary was entitled notify the respondent of the levy of assess

to notice of assessments by reason of the ments as agreed, and that by reason of such

insanity of the insured, of which appellant failure, the attempted suspension was void.

was advisedl, still we think no recovery can It is not disputed but that notice of the

be permitted herein as the respondent and January, 1902. assessment was given to her mother, who was acting in her behalf. Sheridan by the head clerk, in the manner

must be held by their subsequent conduct, required by the by-laws, and the appellant

covering i period of more than two years, now insists that nonpayment after such no to have acquiesced in such alleged irregular tice ipso facto worked a forfeiture of the forfeiture of the certificate. At all times ('ertificate, and that, even though the clerk

after March S. 1902, they failed to make of the local camp did agree to notify the any further tender of dues or assessments, respondent's mother of the assessments when nor did they take any steps to secure relief levied, such agreement was not binding upon

from such suspension and forfeiture. the appellant by reason of the restrictions up

In Lavin v. Grand Lodge A. 0. U. W., 104 on his authority contained in its by-law's.

Jo. App. 1, 78 S. W. 325. cited by respondWe think these contentions should be sus

ent, it was contended that the wife of the tained upon the authority of Modern Wood beneficiary had twice tendered payment of men of America v. Tevis, 117 Fed. 369, 54

assessments which were due, but that the C. C. A. 293, and cases therein cited. In the

clerk of the local lodge had declined to ac. Tevis Case, the United States Circuit Court

rept the same for the reason that, as he alof Appeals construed and passed upon the leged, the tender was insufficient in amount. legal effect of the identical by-laws now No further payments were made or tendered before us, and we fully indorse and adopt during the life of the assured, who died some its reasoning as controlling in this case: this six months later. On trial judgment was being the sole instance in which it is shown

entered in favor of the beneficiary, which that the clerk in his course of dealing with the appellate court reversed, ordering a new members or beneficiaries violated any by trial. Upon investigation we find that on law of the society, and it not appearing that the second trial the beneficiary again rehis action was the result of any customary covered judgment, and that the case again course of procedure adopted by him towards came to the court of appeals, being reported members or beneficiaries. A single act of in 112 Mo. App. at page 1, 86 S. W. 600. transgression cannot arise to the dignity of On this last hearing the Appellate Court a custom so as to be impliedly ratified by enters into a very elaborate and able disthe appellant. Had it been pleaded and cussion of the rights and duties of an asshown that the clerk habitually violated ar sured when a certificate issued by a fraterpellant's by-laws in this or kindred matters, nal society has been forfeited without just a different rule might possibly be applied in cause, and announces the doctrine that it is

87 P.-9

cate would be absurd, to say nothing of its being unjust. We think the respondent acquiesced in the decision and action of the clerk, that she is now bound thereby, and it not entitled to recover.

The motion for a directed verdict in favor of the appellant should have been granted, and the trial court erred in denying the same. It is ordered that the judgment of the superior court be reversed, and that the cause be remanded, with instructions to dismiss the action.


essential for the preservation of the rights of the beneficiary under the certificate that, notwithstanding such forfeiture, the assured or his representative should offer to fully perform the contract upon his part. The court, reviewing numerous authorities, points out a clear distinction between the principles applicable to old line life insurance companies which carry on business for profit, and those which are applicable to fraternal societies. Under appellant's by-laws and the terms of the certificate, Sheridan was required to pay quarterly dues in advance, without notice of the same. There is no showing that either he or any other person ever offered to make such payments within the two years and a half the assured lived after January, 1902. Yet the respondent and her mother, who had the certificate in her possession, must have known that nonpayment of these dues would ipso facto forfeit the rights of the assured, without regard to the assessments. There is no showing that, after the tender made in March, 1902, was returned by the clerk, the assured, the respondent, or her mother ever attempted to take any steps, either in the order or in any court of justice, to compel a reinstatement of the policy, or to have the alleged forfeiture declared to be void. The appellant contends that, under the by-laws of the society, the respondent should have appealed from the action of the clerk, and that, having failed to do so, she is now estopped from claiming under the certificate.

Respondent, however, calls attention to the fact that the by-laws, by their express terms, give the right of appeal to members only. This is true. Yet were we to hold that the respondent, by reason of her father's insanity, was, prior to his death, entitled to any vested right in the certificate as against the appellant, , she

she certainly should have taken some action to protect herself from the loss which would necessarily result from the forfeiture alleged to be void, and should have done so without unreasonable delay. Accepting her theory of this case, we are unable to escape the conclusion that a duty was imposed upon her to at least direct the attention of the local camp to the action of its clerk, so that it might be afforded an opportunity for correcting his mistake in refusing the tender, either by taking action itself, or by causing the head camp to act. If the respondent and her representatives could be permitted to remain quiet and allow the suspension of Sheridan and the forfeiture of the certificate to continue unquestioned for the period of more than two years, without even tendering any payment of dues which necessarily matured, and could then successfully prosecute this claim against appellant, there is no reason why they could not have continued such inactivity for a period of 10 years or even longer. Such a construction of the certifi


A city charter provided that all public work should be done by contract under the supervision of the commissioner of public works, whose duty it was to fix the time within which the work should be completed, and it was provided that the contract should specify the time within which the work should be completed, and that, if not completed within that time, the contract should be void. Held, that where work under a contract was not completed ithin the required time, owing to a cessation of work by the contractor on the request of the commissioner of public works, the contract was not void.

[Ed. Note.-For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, $ 894.)

Appeal from Superior Court, Pierce County; Thad Huston, Judge.

Objections by W. G. Hellar and others to an assessment for a street improvement in the city of Tacoma. The objections were overruled by the city council, but on appeal to the superior court the contract for the improvement was held void, and from such judgment the city appeals. Reversed and ren:anded.

C. M. Riddell, R. E. Evans, and J. A. Quick, for appellant. T. L. Stiles, for respondents.

MOUNT, C. J. This appeal is from an order of the superior court of Pierce county adjudging a contract between the city of Tacoma and the Barber Asphalt Paving Company void, and for that reason annulling an assessment made by the city to pay for certain street improvements made under the contract. The city appeals.

The facts are that the city of Tacoma in the year 1905 passed a resolution and ordinance providing for the paving of certain streets and alleys in said city, designating the district as “improvement district No. 252.” These improvements were ordered to be made at the expense of the property specially benefited thereby, payment to be made to the contractors in bonds which were to mature annually for a period of years. The

commissioner of public works was directed, must be done are mandatory and binding on to prepare plans and specifications and make all the parties, and, the work not having estimates of the cost of the improvements, been done within 160 days, the contract is and to call for bids for the work. This was void ; that the demurrage of $25 per day done, and upon public advertisement a con must be enforced against the contractor after tract was let to the Barber Asphalt Paying 120 days, even if the work was completed Company, and duly signed on March 29, 1905. within the 160-day limit. Upon trial to the By the terms of this contract, and the speci court without a jury the court found that the fications which were made a part thereof, contract had not been completed within 160 the work was to be completed within 160 days as therein provided, and was therefore days after the execution of the contract, void, and concluded that the city of Tacoma which provided : “If said improvements be had no power to levy an assessment for work not completed within one hundred and twenty done under the contract, and entered a judgdays after the execution of this contract, a ment annulling the assessment in so far as demurrage will be charged as hereinafter set the same affects the respondents' property. forth, but due allowance will be made for The question in this case is, did the comsuch days that rain prevents the execution missioner of public works have authority of this work in a proper manner. The com for any reason to stop the work under the missioner of public works shall decide the contract, and thereby extend the time when number of days to be allowed. Said time, , the work should be finally completed? Rehowever, shall not extend beyond the one spondents contend that he had no such auhundred and sixty day limit." The demur thority. Appellant, while contending for the rage provided for was $25 per day after 120 affirmative of the question, also insists that days. The contract also provided that the the work was substantially completed when work should be done under the supervision it was stopped by the commissioner of public and to the satisfaction of the commissioner works; the facts in this respect being that of public works. The paving company, after the whole contract contained about 40,000 niaking the contract, entered upon the work, square yards of paving, which had all been and continued to perform the same until done except about 836 square yards, or, as about the 13th day of July, 1905, when the is claimed by the respondents, about 1,464 paving company was directed by authority of square yards, which uncompleted work was the commissioner of public works to cease at several street intersections. It was claimwork until other pavement which was being ed that these intersections could not be comdone in other districts adjoining district No. pleted so as to make a good job until other 252 could be brought up and fitted and con work should be done on the intersecting nected to this work. In obedience to this streets, and that it was for the benefit of the request, the paving company ceased work on city that the work was stopped in its incomthis contract until about September 14, 1905. plete state. Under the view we take of the The 160-day limit expired on September 5, main question in the case, it will not be nec1905. On the next day these respondents essary to decide or to discuss the question of served written notice on the commissioner substantial performance. The city charter of public works that the time limit for the of Tacoma provides, at section 160, that all completion of the contract had expired, and public work authorized by the city council demanded that he permit no further work by shall be done by contract under the supervithe paving company upon said contract, and sion of the commissioner of public works; that the commissioner of public works pro- but before awarding any contract the comceed to let a contract for the completion of missioner of public works shall cause notice the work. The commissioner of public works to be given inviting sealed proposals therepaid no attention to this notice, but permitted for. Section 164 provides that the notice the pavirg company to finish the work on or shall contain a general description of the about the 14th and 15th days of September, work to be done, the materials or supplies to and thereafter accepted the completed work. be furnished, and the time within which the Subsequently an assessment roll was prepared work is to be commenced and when to be assessing the property of respondents and completed, and shall refer to the plans and others specially benefited for the payment of specifications on file in the office of the comthe cost of the improvement, viz., $105,450. missioner of public works for full details of The respondents, representing property in the the work. Section 165 provides that all condistrict assessed for about $41,000, appeared tracts shall be drawn under the supervision before the city council and objected to the of the city attorney and shall have attached assessment upon several grounds. All the thereto detailed specifications of the work to objections were heard and considered by the be done, which shall be referred to and made city council and rejected. Respondents there part of the contract, that every contract enupon appealed to the superior court of Pierce tered into by the commissioner of public county, but upon such appeal waived all of works shall be signed by him and by the its objections except two, which are substan other contracting party, and “that the contially as follows: That the charter pro tract for work shall specify the time within visions as to the time within which work which the work shall be commenced and when

to be completed, as was specified in the no per day for each and every day that shall tice inviting proposals therefor. In case of elapse after the said one hundred and twenty failure on the part of the contractor to com days until said work is completed; provided plete his contract within the time fixed, his that in no event shall the final time for the contract shall be void, and the city shall not completion of said work extend beyond one pay or allow him any compensation for work hundred and sixty days after the execution done by him under the said contract."

of said contract, and, if said work be not . "Sec. 166. If the contractor does not com completed and said contract finished and complete his work within the time limited there plied with on or before the said final limit in, said commissioner of public works may of one hundred and sixty days after the re-let the unfinished portion of said work, signing and execution of this contract, then after pursuing the formalities hereinbefore and in that event said contract shall be described for letting of the whole.

void, as provided by section 107 of the city "Sec. 107. The work in this article pro charter, and all rights and claims under the vided for must be done under the direction provisions of this contract forfeited by the and to the satisfaction of the said commis said contractor, and in that event the said sioner of public works, and all materials and contractor shall not be allowed or paid any supplies furnished must be in accordance compensation; provided, however, that if with the specifications and to his satisfaction. | the contractor be delayed by the city council When any contract shall have been com or officials in the beginning of this work, or pleted and accepted by him, he shall so de in any case any allowance for rainy weather clare and thereupon he shall deliver to the be made in writing by the commissioner contractor a certificate to that effect."

of public works, then the time of such sus. The contract entered into by the Barber pension or delay shall be added to the said Asphalt Paving Company and the commis one hundred and twenty day limit above sioner of public works substantially followed mentioned, but in no event shall said susthe provisions of the charter above set out. pension or delay extend the time for the The language of the contract in this respect completion of the work under this contract is as follows: "Said contractor agrees to beyond the said limit of one hundred and construct and complete said improvement in sixty days, above mentioned, for the final accordance with the plans and specifications completion of the work." It is claimed that heretofore prepared by the city engineer of these provisions of the city charter and consaid city, and in pursuance of the terms of tract are mandatory. We may readily cona resolution adopted by the city council of cede that they are so, and that they control the city of Tacoma, on the 25th day of Janu both the contractor and the city officials ary, 1905, ordering said improvement to be in regard to the work which is to be permade, an Ordinance No. 2321 of the city of formed under the provisions thereof. But, Tacoma, and in strict accordance with and in order to arrive at a correct understandconforming to the drawings, plans, and speci ing of their scope and meaning, we must fications for said improvement filed in the consider the object for which they were office of the commissioner of public 'works enacted as well as the language used. of the city of Tacoma on the 27th day of provision that the contract shall specify the January, 1903, a copy of which said plans time within which the work shall be completand specifications are hereto attached, mark. ed, and that the failure of the contractor to ed 'Exhibit A,' and made a part of this complete the work in the time fixed shall agreement. The work hereby contracted for render the contract void, were clearly for shall be commenced within ten days after the benefit of the city, and were intended to the signing and execution of this contract, prevent unnecessary delays and failure on and the whole of said materials and supplies the part of the contractor to diligently proseshall be furnished and said work completed cute the work. They were not intended to within one hundred and sixty days after guard against delays caused by the city or the execution of this contract; but if said the commissioner of public works and thereimprovement 'be not completed within one by become a trap for the contractor. The hundred and twenty days after the execution charter does not prescribe any fixed time of this contract, a demurrage will be char within which work shall be done. That is ged, as hereinafter set forth, but due allow left to the commissioner of public works, ance will be made for such days that rain who fixes the time when he prepares the prevents the execution of this work in a plans and specifications. This time limit fixproper manner. The commissioner of public ed by the commissioner of public works is works shall decide the number of days to required to be put into the contract which be allowed; said time, however, shall not is signed by him and the contractor, and in extend beyond the 160-day limit. In case case of failure on the part of the contractor the contractor fails to complete the work to complete his contract within the time within one hundred and twenty days after fixed the contract shall be void. The charthe execution of the contract, he shall pay ter also provides that the contractor shall to the city of Tacoma, as penalty for dam perform his work under the direction and ages caused by such delay the sum of $25 to the satisfaction of the commissioner of

public works. These provisions do not mean the limit in good faith for the benefit of that, where the failure is entirely on ac the city, and that such time lost without the count of the city or the commissioner of fault of the contractor should not be conpublic works, the contract and work done sidered to avoid the contract. For this reathereunder shall be forfeited. Such

Such con son the lower court erred in holding the struction would not be placed upon the char contract void and in annulling the assesster or upon the contract unless the languagement roll. used clearly and unequivocally so states. It The judgment of the trial court is reversed, does not do so. It refers entirely to the and the cause remanded, with directions to failure of the contractor. The power to fix the lower court to dismiss the appeal of the the time for completion of the work rests city council and to affirm the assessment roll. with the coumissioner of public works. He fises the time which seems to him adequate, RUDKIN, DUNBAR, CROW, ROOT, FULand invites bids accordingly. Bids are made LERTON, and HADLEY, JJ., concur. on that basis by persons who are willing to enter into a contract to complete the work under the direction and to the satis

(44 Wash. 207) faction of the cominissioner of public works

STATE Y. DILLEY et al. within the time fixed, and provides that a

(Supreme Court of Washington. Oct. 26, 1906.) failure on the part of the contractor to 1. CRIMINAL LAW-PRELIMINARY PROCEEDINGS complete the work within the time fixed shall


ER. avoid the contract, but neither the charter

One announcing himself ready for trial nor the contract provides that the contract when his case is called, and not objecting to goshall be void on account of any act of omis

ing to trial without having been furnished with sion or commission of the commissioner of

a copy of the information, as required by Bal

linger's Ann. Codes & St. § 6880, but merely public works. In this case it is shown with stating that he wished the record to show that he out dispute that the work was nearly com- had not been served with a copy, cannot after pleted well within the time, and that the

conviction urge that he was prejudiced by the

omission to serve a copy. contractor could have performed his work

[Ed. Note.-For cases in point, see vol. 14, within the 120 days, and that he would have Cent. Dig. Criminal Law, 88 1408, 2117.) done so but for the request of the commis 2. SAME - DECLARATION OF CODEFENDANTS sioner of public works that the work cease ADMISSIBILITY. until certain other work in other districts

Where, in a criminal case, the theory of

the prosecution was that a conspiracy existed was done; that the commissioner of public

between defendants jointly tried to commit the works stopped the work for the benefit of crime charged, a conversation between a defendthe city, in order that the work might be

ant and the prosecuting witness not occurring finished better a little later than it could be

in the presence of the codefendants was admis

sible as against the defendant, and also against done at that time. The good faith of city the codefendants on proof of the existence of a officials in charge of the work is not attacked. conspiracy. Under these circumstances, we see no good

[Ed. Note.For cases in point, see vol. 14, reason for holding the contract void.

Cent. Dig. Criminal Law, $$ 984-987.] Counsel for respondents cites a number of

3. SAME.

Evidence on a trial for robbery examined, cases where the contract was extended after

and held sufficient to submit to the jury the isthe time limit had expired, and after the sue of conspiracy between defendants to commit contract had become void, and it was there

the crime, rendering acts and declarations of held that the contracts became void at the

one defendant admissible against the others.

4. SAME-ADMISSIONS BY ACCUSED-ADMISSIexpiration of the time limit, and that there

BILITY. was no power to revive a void contract after On a trial for crime, the state offered in that time. Those cases were clearly right. evidence an unsigned letter implicating accused If the contractor in this case, without the

in the commission of the offense charged. There

was no proof that the letter was in the handdirection of the commissioner of public works

writing of accused, but it was shown that the or in violation of his orders, had permitted letter fell directly from accused's room in the the 160-day limit to expire, his contract no jail, and that there was no other person there

at the time. Held, that the letter was admisdoubt would in that case have become void

sible; the facts being sufficient to connect acaccording to the express terms of the statute cused with writing it. and the contract, and no power is vested 5. SAME_CONSPIRACY-DECLARATIONS OF CONeither in the city or in the commissioner of


On a trial for robbery, the evidence was public works to revive the same, and the

sufficient for the submission to the jury of the authorities cited would in such cases be

issue of a conspiracy between defendants, not in point. But, because the contractor obeyed only to commit the robbery, but also to fabricate the direction of the commissioner of public

a defense. All the defendants were confined in

jail while awaiting trial. A defendant wrote a works, as he was obliged to do, while his

letter intended for the other defendants, indicatcontract was yet in force and still alive, ing a line of defense in accordance with the conthis case is not controlled by the cases cited. spiracy to fabricate a defense. Held, that the We are of the opinion that the commissioner

letter was admissible against all the defendants

as showing a general design of the conspirators. of public works was authorized to stop the

[Ed. Note.-For cases in point, see vol. 14, work at any time before the expiration of Cent. Dig. Criminal Law, $$ 989, 1002.)

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