HAWLEY, District Judge,
after stating the case, delivered the opinion of the court.
1. Did the court err in instructing the jury to find a verdict for defendant? This is the ultimate question for decision in this case. But to reach a proper decision other questions must be discussed and disposed of. Certain elementary principles will first be noticed, as they furnish the keynote to a proper solution of the main question. The law is well settled that when the evidence in any given case is conflicting, or the facts therein disputed, or where the facts are of such a character that different minds might honestly draw different conclusions from them, the case must be left to the jury for their determination. In other words, a case should not be withdrawn from the jury unless the conclusion follows as matter of law that no recovery can be had upon any view which can be properly taken of the facts the evidence tends to establish. Railroad Co. v. Stout, 17 Wall. 657, 663; Moulor v. Insurance Co., 101 U. S. 708; Insurance Co. v. Doster, 106 U. S. 30, 32, 1 Sup. Ct. 18; Bank v. Morgan, 117 U. S. 96, 122, 6 Sup. Ct. 657; Humiston v. Wood, 124 U. S. 12, 8 Sup. Ct. 347; Kane v. Railway Co., 128 U. S. 91, 9 Sup. Ct. 16; Jones v. Railroad Co., 128 U. S. 443, 9 Sup. Ct. 118; Dunlap v. Railroad Co., 130 U. S. 649, 652, 9 Sup. Ct. 647; Russell v. Post, 138 U. S. 425, 11 Sup. Ct. 353; Railway Co. v. Ives, 144 U. S. 408, 417, 12 Sup. Ct. 679; Railroad Co. v. Cox, 145 U. S. 594, 606, 12 Sup. Ct. 905; Gardner v. Railroad Co., 150 U. S. 349, 361, 14 Sup. Ct. 140; Lincoln v. Power, 151 U. S. 436, 14 Sup. Ct 387. It is equally true, and as well settled, that when the undisputed evidence is so conclusive that the court would, under the law, be compelled to set aside a verdict returned in opposition to it, it may and should withdraw the case from the consideration of the jury, and direct a verdict. Pleasants v. Fant, 22 Wall. 116, 122; Herbert v. Butler, 97 U. S. 319; Griggs v. Houston, 104 U. S. 553; Randall v. Railroad Co., 109 U. S. 478, 482, 3 Sup. Ct. 322; Schofield v. Railway Co., 114 U. S. 615, 618, 5 Sup. Ct 1125; Goodlett v. Railroad Co., 122 U. S. 391, 7 Sup. Ct. 1254; North Pennsylvania R. Co. v. Commercial Nat. Bank, 123 U. S. 727, 8 Sup. Ct. 266; Gunther v. Insurance Co., 134 U. S. 110, 116, 10 Sup. Ct. 448; Railroad Co. v. Converse, 139 U. S. 469, 472, 11 Sup. Ct. 569; Elliott v. Railway Co., 150 U. S. 245, 14 Sup. Ct. 85.
The defendant in error claims that no legal assessment was ever made, or notice of such given, on which to base a forfeiture. This contention is made upon the ground that the assessments must be made by the board of directors, and that it could not be delegated to the executive committee. It is undoubtedly true that the as[69]*69sessinents must be legally made in order that the failure of a member to pay them shall work a forfeiture of his rights of membership. They can only be valid when made under and upon the conditions stated in the charter and by-laws. If the charter authorizes the directors (o make an assessment, it can only be made by them. Every fact authorizing an assessment; to be made must exist, and every act required of the society must be performed, before an assessment can be legally levied, which a member must pay or forfeit Ms right of membership. Nibl. Mut. Ben. Ins. §§ 250, 252, and authorities there cited. If the charter in the present case required the assessments to be made and levied by the board of directors, the position contended for by plaintiff would have to be sustained. But we are of opinion that, under a proper construction of the various provisions of ihe charter, the duly of making Ihe assessment. is vested in the executive committee, and that the certificate of iusurance is issued subject to this provision. Moreover, the plaintiff treated all the assessments made by the association as valid and binding.
2. Was there such a course of dealing between the plaintiff and defendant as to justify plaintiff in believing that, payment of the assessments within a few days after the time fixed for the payment thereof would be accepted by the defendant? Did the defendant waive ihe forfeiture of the policy by sending a notice of call 44 to plaintiff? Was there any evidence upon these points of such a character as to raise a question of fact which required the case to be submitted to the jury? With reference to the course of dealing, the rule is clearly and correctly stated in Bacon on Benefit Horieties (section 433) as follows:
“If ihe company has, by its course of conduct, acts, or declarations, or by any language in the policy, misled Hie insured in any way in 4-egard to the payment of premiums, or created a belief on the part of the insured that strict compliance with the. letter of the contract as to payment of the premium on the day stipulated would not be exacted, and the insured in consequence fails to pay on the day appointed, the company will be held to have waived the requirement, and will be estopped from setting up the condition as cause for forfeiture. In determining whether there has been a modification of the terms of the policy by subsequent agreement, or a waiver of the forfeiture incurred by the nonpayment of the premium on the day specified, the test is whether the insurer, by his course of dealing with the assured, or by the acts and declarations of his authorized agents, has induced in the mind of the assured an honest belief 1hat the terms and conditions of the policy, declaring a forfeiture in event of nonpayment on the day and in the manner prescribed, will not be enforced, but that payment will be accepted on a subsequent day, or in a different manner; and when such belief has been induced, and the insured has acted on it, ihe insurer will be estopped from insisting on the forfeiture.”
.Numerous authorities are cited in ihe text in support of the rule, and in addition thereto we cite the following: Insurance Co. v. Eggleston, 96 U. S. 572, 577; Insurance Co. v. Doster, 106 U. S. 30, 35, 1 Sup. Ct. 18; Insurance Co. v. Unsell, 144 U. S.
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HAWLEY, District Judge,
after stating the case, delivered the opinion of the court.
1. Did the court err in instructing the jury to find a verdict for defendant? This is the ultimate question for decision in this case. But to reach a proper decision other questions must be discussed and disposed of. Certain elementary principles will first be noticed, as they furnish the keynote to a proper solution of the main question. The law is well settled that when the evidence in any given case is conflicting, or the facts therein disputed, or where the facts are of such a character that different minds might honestly draw different conclusions from them, the case must be left to the jury for their determination. In other words, a case should not be withdrawn from the jury unless the conclusion follows as matter of law that no recovery can be had upon any view which can be properly taken of the facts the evidence tends to establish. Railroad Co. v. Stout, 17 Wall. 657, 663; Moulor v. Insurance Co., 101 U. S. 708; Insurance Co. v. Doster, 106 U. S. 30, 32, 1 Sup. Ct. 18; Bank v. Morgan, 117 U. S. 96, 122, 6 Sup. Ct. 657; Humiston v. Wood, 124 U. S. 12, 8 Sup. Ct. 347; Kane v. Railway Co., 128 U. S. 91, 9 Sup. Ct. 16; Jones v. Railroad Co., 128 U. S. 443, 9 Sup. Ct. 118; Dunlap v. Railroad Co., 130 U. S. 649, 652, 9 Sup. Ct. 647; Russell v. Post, 138 U. S. 425, 11 Sup. Ct. 353; Railway Co. v. Ives, 144 U. S. 408, 417, 12 Sup. Ct. 679; Railroad Co. v. Cox, 145 U. S. 594, 606, 12 Sup. Ct. 905; Gardner v. Railroad Co., 150 U. S. 349, 361, 14 Sup. Ct. 140; Lincoln v. Power, 151 U. S. 436, 14 Sup. Ct 387. It is equally true, and as well settled, that when the undisputed evidence is so conclusive that the court would, under the law, be compelled to set aside a verdict returned in opposition to it, it may and should withdraw the case from the consideration of the jury, and direct a verdict. Pleasants v. Fant, 22 Wall. 116, 122; Herbert v. Butler, 97 U. S. 319; Griggs v. Houston, 104 U. S. 553; Randall v. Railroad Co., 109 U. S. 478, 482, 3 Sup. Ct. 322; Schofield v. Railway Co., 114 U. S. 615, 618, 5 Sup. Ct 1125; Goodlett v. Railroad Co., 122 U. S. 391, 7 Sup. Ct. 1254; North Pennsylvania R. Co. v. Commercial Nat. Bank, 123 U. S. 727, 8 Sup. Ct. 266; Gunther v. Insurance Co., 134 U. S. 110, 116, 10 Sup. Ct. 448; Railroad Co. v. Converse, 139 U. S. 469, 472, 11 Sup. Ct. 569; Elliott v. Railway Co., 150 U. S. 245, 14 Sup. Ct. 85.
The defendant in error claims that no legal assessment was ever made, or notice of such given, on which to base a forfeiture. This contention is made upon the ground that the assessments must be made by the board of directors, and that it could not be delegated to the executive committee. It is undoubtedly true that the as[69]*69sessinents must be legally made in order that the failure of a member to pay them shall work a forfeiture of his rights of membership. They can only be valid when made under and upon the conditions stated in the charter and by-laws. If the charter authorizes the directors (o make an assessment, it can only be made by them. Every fact authorizing an assessment; to be made must exist, and every act required of the society must be performed, before an assessment can be legally levied, which a member must pay or forfeit Ms right of membership. Nibl. Mut. Ben. Ins. §§ 250, 252, and authorities there cited. If the charter in the present case required the assessments to be made and levied by the board of directors, the position contended for by plaintiff would have to be sustained. But we are of opinion that, under a proper construction of the various provisions of ihe charter, the duly of making Ihe assessment. is vested in the executive committee, and that the certificate of iusurance is issued subject to this provision. Moreover, the plaintiff treated all the assessments made by the association as valid and binding.
2. Was there such a course of dealing between the plaintiff and defendant as to justify plaintiff in believing that, payment of the assessments within a few days after the time fixed for the payment thereof would be accepted by the defendant? Did the defendant waive ihe forfeiture of the policy by sending a notice of call 44 to plaintiff? Was there any evidence upon these points of such a character as to raise a question of fact which required the case to be submitted to the jury? With reference to the course of dealing, the rule is clearly and correctly stated in Bacon on Benefit Horieties (section 433) as follows:
“If ihe company has, by its course of conduct, acts, or declarations, or by any language in the policy, misled Hie insured in any way in 4-egard to the payment of premiums, or created a belief on the part of the insured that strict compliance with the. letter of the contract as to payment of the premium on the day stipulated would not be exacted, and the insured in consequence fails to pay on the day appointed, the company will be held to have waived the requirement, and will be estopped from setting up the condition as cause for forfeiture. In determining whether there has been a modification of the terms of the policy by subsequent agreement, or a waiver of the forfeiture incurred by the nonpayment of the premium on the day specified, the test is whether the insurer, by his course of dealing with the assured, or by the acts and declarations of his authorized agents, has induced in the mind of the assured an honest belief 1hat the terms and conditions of the policy, declaring a forfeiture in event of nonpayment on the day and in the manner prescribed, will not be enforced, but that payment will be accepted on a subsequent day, or in a different manner; and when such belief has been induced, and the insured has acted on it, ihe insurer will be estopped from insisting on the forfeiture.”
.Numerous authorities are cited in ihe text in support of the rule, and in addition thereto we cite the following: Insurance Co. v. Eggleston, 96 U. S. 572, 577; Insurance Co. v. Doster, 106 U. S. 30, 35, 1 Sup. Ct. 18; Insurance Co. v. Unsell, 144 U. S. 439, 449, 12 Sup. Ct. 671; Dennis v. Association, 120 N. Y. 496, 505, 24 N. E. 843; King v. Association, 87 Hun, 591, 597, 34 N. Y. Supp. 563; Insurance Co. v. Warner, 80 Ill. 410; Association v. Win[70]*70dover, 137 Ill. 417, 27 N. E. 538; Silverberg v. Insurance Co., 67 Cal. 36, 39, 7 Pac. 38; Association v. Jones, 84 Ky. 110, 117; Sweetser v. Association, 117 Ind. 97, 101, 19 N. E. 722. A waiver is often a mixed question of law and fact. Each case must necessarily depend upon its own peculiar circumstances, conditions, and surroundings. But in all cases where there is any substantial evidence of a waiver of any of the rules or regulations of the insurance company, or of any of the provisions of its charter or by-laws, the question as to whether there has been a waiver or not should be submitted as a matter of fact, under instructions of the court, for the jury to decide. In the present case the plaintiff, after stating the acceptance of previous assessments by the association several days after the same became due, and that he had been informed by the assistant secretary in New York that the association was not particular as to the time of payments in California, testified that he, tried to find the agent on the afternoon of May 2, 1889 (May 1st being a holiday), that he supposed from the past action of the association that it would make no difference if he did not pay call No. 43 until the next day, May 3, 1889. Did the plaintiff, as a reasonable and prudent man, have the right to believe from the whole course of his dealing with the association that a few days delay would make no difference? All the authorities declare that' such a course of dealing may be pursued by insurance companies and mutual benefit associations as jyill estop them from saying that there was no agreement to receive any premiums or calls after the same became due, after they have permitted their policies or certificates to stand open and remain uncanceled, and especially after they have accepted payments of premiums or assessments overdue. One party to a contract ought not to be permitted to make an outward show of continued leniency, repeated with such uniformity, or in such a manner, as to put another off his guard, and then after-wards, by a sudden change in his course of conduct, declare a forfeiture, when the other party has been misled, and is helpless to avert the consequences! In Margarge v. Insurance Co., 86 Pa. St. 236, where it was the general practice of the company to receive overdue premiums, the court said:
“No vestige of reason is discoverable for refusing the premium tendered the second day after it became due. The company had twice before taken it under precisely similar circumstances, and in entire accord with the general practice. * * * In the midst of a general usage, to receive premiums after the stipulated day, when the assured was in usual health, the company, if intending to enforce forfeiture, should not deal with the assured as if recognizing the general practice, nor .give him a notice with one hand and lull him to sleep with the other.”
It is true that insurance companies and mutual benefit associations have the unquestioned right to rely strictly upon the conditions of their contracts, and if the policy holders in the one case, or parties holding certificates of membership in the other, do not strictly comply with the covenants therein contained, they have no cause of complaint if, upon their failure so to do, their policies or certificates are declared forfeited. But neither the insurance. [71]*71companies nor the benefit associations have any right to simply waive the conditions when it is beneficial for them so to do, and thereafter, under like circumstances, endeavor to enforce a forfeiture for their own benefit. There should be equality and mutual-' ity. They cannot say at one time to the holder of a policy or certificate that, “All we desire is your money, even if the premium or assessment is past due,” and accept it, and then at another time, or after the death of the insured, say that, “You did not pay your premium or assessment when due, and our contract declares that, if not promptly paid, you have forfeited all your rights.” A forfeiture not being favored in the law, and being a matter of strict legal right, it follows that the party asserting it should be able to show that it has always inflexibly adhered to and insisted upon a strict compliance with the terms of its contract. In Insurance Co. v. Unsell, supra, i.he court said that the law -applicable to that case was stated to the jury with substantial accuracy in the following instruction:
“But tlie plaintiff says that, beyond these receipts of money after the day specified, there were instances in which tnoney was received without; any such notice. Now, the question comes up, in respect to that, was there such a continuance of business, was the whole course of business from the commencement to the close such that from tills and that, and from all the receipts and all the transactions, he had a right to believe, and did believe, that the question of health even would nd he considered, and that it would be. willing to take his money shortly after it had become due, without inquiry a,s to his health? If so, that makes a waiver. If the company, by its conduct, led him, as a reasonable and prudent business man, to believe that he could make payments a few days after, sick or well, it cannot turn around now and say, ‘You did not pay a.t: the time.’ I cannot say to you as a matter of law that one receipt after the time specified would make a waiver, or that fifty would. It is not in the numbers. The question is for you to consider and determine from all of them, and from the whole course of business, whether, as a prudent business man, be had a right to believe that it was immaterial whether he paid on the day or a few days later. If the course of conduct was such that he had a right to believe that he could pay only in good health, then there was no waiver applicable to the case at bar. It must have been such a course of conduct as would lead a reasonably prudent man to believe that the company was willing to take payment sick or well.”
We deem it unnecessary to discuss at any length the question touching the subsequent withdrawal of the money paid by plaintiff to Park on the assessment of call 43. If it be true tbat a jury, under the evidence, would have the right to infer that the associa.tion had pursued such a course of dealing as to induce the plaintiff, as a reasonable man, to believe tbat it would not obje’ct to receive the money within a few days after it fell due, then, in order to protect his rights, it would have been sufficient for him to have simply made a tender of the amount due, without paying over the money, as the agent refused to give him a receipt therefor, and thereafter to hold himself in readiness at all times to pay the same upon request. In Wait’s Actions and Defenses (volume 7, p. 592), it is said:
“When a debtor has made a tender of money In pursuance of the terms of a contract, it is his duty to keep the money safely, so as to be prepared at [72]*72all times to produce it when required, to keep his tender good. * * * He is, however, at liberty to use it as his own: All he is under obligation to do is to be ready at all times to pay the debt in current money when requested.”
See, also, 25 Am. & Eng. Enc. Law, 901.
There is a conflict in the .testimony as to whether the money was paid to the agent of the association. Park, the agent, testified that plaintiff made the tender on mortuary call No. 43 on the 3d of May, 1889, and that “when he made the tender I gave him a memorandum, showing that he had deposited that money with me as cashier of the Bank of San José. * * * This money was repaid to him November 11, 1890.” But the precise manner of the payment is immaterial. The tender is admitted to have been legally made. The plaintiff did not deprive himself of the right to maintain this action by withdrawing the money, if the evidence upon other grounds is sufficient to enable him to maintain the same.
The right of plaintiff to have this case submitted to a jury does not solely depend upon the course of conduct of the defendant in receiving previous payments after the time when the assessments became due, and is not to be confined simply to the acts of the association in relation to call No.' 43, because it appears from the evidence that the defendant, after its refusal to receive payment on mortuary call No. 43, except upon certain conditions, regularly levied assessment No. 44, and sent a notice thereof in the regular manner and usual form to the plaintiff, requesting payment thereof, and that payment thereof was legally tendered in due time by the plaintiff to the agent of the association at San José. The tender of an assessment is just as effectual to preserve the rights of a member of a mutual benefit society as the payment of the assessment. For the purpose of avoiding penalties and forfeitures, or the loss of any right or privilege, a tender is the exact equivalent of payment, and it does not have to be repeated. Nibl. Mut. Ben. Soc. § 279. Where a society has declared a contract forfeited, and has refused to receive an assessment from a member after a legal tender has been made, his subsequent failures to tender assessments will not affect his right to recover on the contract. Meyer v. Insurance Co., 73 N. Y. 516, 524; Miesell v. Insurance Co., 76 N. Y. 115, 118. If, therefore, it should be conceded that the course .of dealing already referred to was not of itself sufficient to constitute a waiver, and that, ipso facto, the failure to pay call 43 operated as a forfeiture, and that the association had the right to declare the’certificate or contract forfeited for nonpayment within the stipulated time of call 43, yet if, after the insured had thus become delinquent, a new assessment was made with full knowledge of such delinquency and nonpayment, this would constitute a recognition of the continued validity of the certificate, and would of itself amount to a waiver of all pre-existing rights of forfeiture. In Niblack on Benefit Societies (2d Ed., § 305), the rule is stated as follows:
“It may be laid down as the general rule that every time a society levies an assessment on a member who has failed to pay a previous assessment [73]*73within the time prescribed by its laws, it waives the forfeiture of the contract for such failure to pay, and acknowledges that, notwithstanding the nonpayment, ho is one of its members.”
The reason oí this rule is a sound one. The society has a right to declare the contract forfeited if the assessment is not paid within the stipulated time, hut this forfeiture is for the benefit of the association, and the levy of an assessment upon a delinquent member is a clear recognition of the validity of the contract, and an acknowledgment of his rights as a member. Murray v. Association. 90 Cal. 402, 408, 27 Pac. 309; Stylow v. Insurance Co., 69 Wis. 224, 34 N. W. 151; Jackson v. Association, 78 Wis. 463, 472, 47 N. W. 733; Wright v. Supreme Commandery, 87 Ga. 426, 13 S. E, 564; Association v. Koontz (Ind. App.) 30 N. E. 145; Insurance Co. v. Wilder, 35 Neb. 573. 53 N. W. 587; Association v. Windover, 137 Ill. 417, 432, 27 N. E. 538.
The claim of defendant that the sending of the notice of assessment No. 44 was not a waiver of the forfeiture resulting from the nonpayment of No. 43 within time, on the ground that the notice itself contained the words, “The sending of this notice shall not be held to waive any forfeiture or expiration of membership caused by tlie nonpayment of any previous annual dues or mortuary calls,” for i:he reason already stated, cannot be sustained. If, as defendant claims, under the rules and by-laws of the association, membership therein ceased by the nonpayment of an assessment witliin the time prescribed for its payment, then it was the duty of the association to drop such member from its rolls, and not levy any further assessments against him. In King v. Association, the court said: “It does not lie in the mouth of the defendant to say that its members are bound by the strict letter of its by-laws and res olntions, so long as it appears that they were waived or ignored by the defendant.” In Association v. Koontz, the court sustained an instruction which substantially stated that, if there was a further delinquency, and during that delinquency appellant made a further assessment against the appellee to pay losses sustained by other members of said association, such would constitute a waiver of forfeiture of said policy at that time. Forfeitures are not favored by the law, but, when appellee was delinquent, under the rules and regulations of said association, appellant could declare appellee’s policy forfeited; yet, if not so done, the law would not forfeit it. It was the right the appellant had when the appellee was delinquent in payment of assessments legally made to forfeit his policy by some act of the company; but a failure to declare such forfeiture, and 1o continue to make assessments upon it, would be treating the policy in full force and not forfeited.
We are of opinion that there was sufficient evidence upon the points we have discussed to justify the submission of this cause upon the facts, under proper instructions from the court as to the law. to the jury, and that the court erred in instructing the jury to find a verdict for the defendant. The judgment of the circuit court is reversed, with costs, and the cause remanded for a new trial.