Mr. Justice Magruder
delivered the opinion of the court:
First—In this case, the Appellate Court has reversed the judgment of the circuit court, which was in favor of the plaintiffs below, without remanding the cause, and has recited no facts in its final judgment of reversal. It must be presumed, therefore, that the Appellate Court found the facts the same as did the trial court, and that the cause was 'reversed for some error of law, which, in the opinion of the Appellate Court, was committed by the trial court.
The constitution and by-laws of the appellee society were introduced in evidence; and one of the by-laws provided that applications should not be received from barkeepers, or from persons, who at any time sold or served intoxicating liquors to be drunk on the premises. In his application William Wasserman, the deceased holder of the certificate, stated that he was not engaged in the manufacture or sale of intoxicating liquors. The proof shows that William Wasserman kept a restaurant in Chicago, to which was attached a bar, where liquor was sold, and that, although he employed two bar-keepers who sold liquor over the bar, he also sometimes in their absence sold liquor himself over the bar. The statement contained in his application was not true; and if the appellee did not have knowledge or notice of its falsity, and did not in any way waive the right which it had to forfeit the certificate on account of such falsity, a recovery could not be had by appellants upon the certificate.
The main question, therefore, upon the trial below, as presented by the propositions submitted by the appellee which were refused, was whether or not appellee had notice of the fact that Wasserman so sold liquor, and whether or not, having such notice, it waived its right of forfeiture.
Upon the trial below, an issue was expressly made upon the special plea as amended, and the third and additional replications thereto, and the rejoinders to such replications, whether there was such knowledge and waiver by the appellee, or its subordinate council at Chicago known as the Tilden Council representing the appellee. As the case is presented to us on this record, we must assume that the issue thus made was decided by the trial court in favor of the appellants, and that, so far as the question of fact made upon such issue was concerned, the Appellate Court concurred with the trial court. In other words, it must here be assumed that, when William Wasserman made his application and answered the questions therein contained, appellee was informed and well knew that he was engaged in the sale of intoxicating liquors, and received him as a member and issued the benefit certificate to him, and received and collected his monthly assessments and membership fees up to the time of his death, with full knowledge that he was so engaged in the sale of intoxicating liquors.
Section 87 of the Practice act provides that, if any final determination of a cause is made by the Appellate Court, as the' result wholly or in part of the finding of the facts concerning the matter in controversy, different from the finding of the court from which such cause is brought by appeal or writ of error, it is the duty of the Appellate Court to recite in its final order, judgment or decree the facts as found. The recital by the Appellate Court of the facts found by it in its final judgment is the only evidence, which we can consider, of the fact that the Appellate Court differs from the trial court as to the facts of the case. Upon the failure of the Appellate Court to find the facts differently from the trial court upon the cause of action set forth in the declaration, it will be considered that, as to such cause of action, the Appellate Court found the facts in the same way in which the trial court found them. (Siddall v. Jansen, 143 Ill. 537; Hayes v. Massachusetts Life Ins. Co. 125 id. 626; Hogan v. City of Chicago, 168 id. 551). If, in the present case, the Appellate Court had found, as a matter of fact, that the appellee had no information or knowledge of the falsity of the statement made in Wasserman’s application, and did not waive its right to insist upon a forfeiture on account thereof, it should have embodied such finding in its final judgment. The opinion of the Appellate Court is not a part of the record, and cannot be considered by us. (Pennsylvania Co. v. Versten, 140 Ill. 637; Coalfield Co. v. Peck, 98 id. 139; Harzfeld v. Converse, 105 id. 534).
Inasmuch as the finding" of facts upon this subject by the Appellate Court must be regarded the same as the finding by the trial court, and as such finding was in favor of the appellants, the Appellate Court should have affirmed the judgment here, unless the trial court committed some error of law.
Second—The question then arises whether, in view of the knowledge by the subordinate council at Chicago that the answer of Wasserman in his application was false, the right to insist upon a forfeiture of the benefit certificate by reason thereof could be waived, as matter of law.
This question arises more particularly but of the refusal of the trial court to hold, as law in the decision of the case, the second proposition submitted by the appellee, which is as follows:
“If, at the time of the making of the application by the deceased, William Wasserman, to become a member of the defendant order, he was a saloon-keeper, and served or sold drinks to be drunk upon the premises, and the officers and members of the local council, to which such application was made, had knowledge of such fact, but such information was not conveyed to the supreme officers of the defendant order, then, in such case, there was no waiver of the by-laws of the defendant, forbidding persons, engaged in the business of selling or serving intoxicating- liquors to be sold upon the premises, to become a member of the defendant order; and plaintiffs cannot recover from the defendant.”
The main question in this case is, whether the trial court did or did not err in refusing to give the above proposition, as requested by appellee. This question has been recently decided by this court in High Court Independent Order of Foresters v. Schweitzer, 171 Ill. 325, where, in making application for membership in Court Sedgwick of the Independent Order of Foresters of the State of Illinois, Schweitzer signed a written application, in which he stated that he was engaged in the business of a restaurant manager and was managing a restaurant, whereas, at that time and for a considerable period before, he was employed in a saloon and restaurant, of which he had control and charge in the absence of the proprietor; and where this court used the following language (p. 328): “It is assigned for error that the trial court erred in the admission of testimony, which was to the effect that, prior to the delivery to the deceased of his certificate of membership, the officers and members of the lodge, to which he belonged, had full knowledge of the fact that he was engaged, at least a part of his time, in tending bar, and continued to receive dues from him, which were entered on the lodge books, and the money turned over to the treasurer of the lodge. It is contended that this appellant cannot be held bound by the action of the subordinate lodge, and, therefore, what the latter may have known or done is wholly immaterial.
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Mr. Justice Magruder
delivered the opinion of the court:
First—In this case, the Appellate Court has reversed the judgment of the circuit court, which was in favor of the plaintiffs below, without remanding the cause, and has recited no facts in its final judgment of reversal. It must be presumed, therefore, that the Appellate Court found the facts the same as did the trial court, and that the cause was 'reversed for some error of law, which, in the opinion of the Appellate Court, was committed by the trial court.
The constitution and by-laws of the appellee society were introduced in evidence; and one of the by-laws provided that applications should not be received from barkeepers, or from persons, who at any time sold or served intoxicating liquors to be drunk on the premises. In his application William Wasserman, the deceased holder of the certificate, stated that he was not engaged in the manufacture or sale of intoxicating liquors. The proof shows that William Wasserman kept a restaurant in Chicago, to which was attached a bar, where liquor was sold, and that, although he employed two bar-keepers who sold liquor over the bar, he also sometimes in their absence sold liquor himself over the bar. The statement contained in his application was not true; and if the appellee did not have knowledge or notice of its falsity, and did not in any way waive the right which it had to forfeit the certificate on account of such falsity, a recovery could not be had by appellants upon the certificate.
The main question, therefore, upon the trial below, as presented by the propositions submitted by the appellee which were refused, was whether or not appellee had notice of the fact that Wasserman so sold liquor, and whether or not, having such notice, it waived its right of forfeiture.
Upon the trial below, an issue was expressly made upon the special plea as amended, and the third and additional replications thereto, and the rejoinders to such replications, whether there was such knowledge and waiver by the appellee, or its subordinate council at Chicago known as the Tilden Council representing the appellee. As the case is presented to us on this record, we must assume that the issue thus made was decided by the trial court in favor of the appellants, and that, so far as the question of fact made upon such issue was concerned, the Appellate Court concurred with the trial court. In other words, it must here be assumed that, when William Wasserman made his application and answered the questions therein contained, appellee was informed and well knew that he was engaged in the sale of intoxicating liquors, and received him as a member and issued the benefit certificate to him, and received and collected his monthly assessments and membership fees up to the time of his death, with full knowledge that he was so engaged in the sale of intoxicating liquors.
Section 87 of the Practice act provides that, if any final determination of a cause is made by the Appellate Court, as the' result wholly or in part of the finding of the facts concerning the matter in controversy, different from the finding of the court from which such cause is brought by appeal or writ of error, it is the duty of the Appellate Court to recite in its final order, judgment or decree the facts as found. The recital by the Appellate Court of the facts found by it in its final judgment is the only evidence, which we can consider, of the fact that the Appellate Court differs from the trial court as to the facts of the case. Upon the failure of the Appellate Court to find the facts differently from the trial court upon the cause of action set forth in the declaration, it will be considered that, as to such cause of action, the Appellate Court found the facts in the same way in which the trial court found them. (Siddall v. Jansen, 143 Ill. 537; Hayes v. Massachusetts Life Ins. Co. 125 id. 626; Hogan v. City of Chicago, 168 id. 551). If, in the present case, the Appellate Court had found, as a matter of fact, that the appellee had no information or knowledge of the falsity of the statement made in Wasserman’s application, and did not waive its right to insist upon a forfeiture on account thereof, it should have embodied such finding in its final judgment. The opinion of the Appellate Court is not a part of the record, and cannot be considered by us. (Pennsylvania Co. v. Versten, 140 Ill. 637; Coalfield Co. v. Peck, 98 id. 139; Harzfeld v. Converse, 105 id. 534).
Inasmuch as the finding" of facts upon this subject by the Appellate Court must be regarded the same as the finding by the trial court, and as such finding was in favor of the appellants, the Appellate Court should have affirmed the judgment here, unless the trial court committed some error of law.
Second—The question then arises whether, in view of the knowledge by the subordinate council at Chicago that the answer of Wasserman in his application was false, the right to insist upon a forfeiture of the benefit certificate by reason thereof could be waived, as matter of law.
This question arises more particularly but of the refusal of the trial court to hold, as law in the decision of the case, the second proposition submitted by the appellee, which is as follows:
“If, at the time of the making of the application by the deceased, William Wasserman, to become a member of the defendant order, he was a saloon-keeper, and served or sold drinks to be drunk upon the premises, and the officers and members of the local council, to which such application was made, had knowledge of such fact, but such information was not conveyed to the supreme officers of the defendant order, then, in such case, there was no waiver of the by-laws of the defendant, forbidding persons, engaged in the business of selling or serving intoxicating- liquors to be sold upon the premises, to become a member of the defendant order; and plaintiffs cannot recover from the defendant.”
The main question in this case is, whether the trial court did or did not err in refusing to give the above proposition, as requested by appellee. This question has been recently decided by this court in High Court Independent Order of Foresters v. Schweitzer, 171 Ill. 325, where, in making application for membership in Court Sedgwick of the Independent Order of Foresters of the State of Illinois, Schweitzer signed a written application, in which he stated that he was engaged in the business of a restaurant manager and was managing a restaurant, whereas, at that time and for a considerable period before, he was employed in a saloon and restaurant, of which he had control and charge in the absence of the proprietor; and where this court used the following language (p. 328): “It is assigned for error that the trial court erred in the admission of testimony, which was to the effect that, prior to the delivery to the deceased of his certificate of membership, the officers and members of the lodge, to which he belonged, had full knowledge of the fact that he was engaged, at least a part of his time, in tending bar, and continued to receive dues from him, which were entered on the lodge books, and the money turned over to the treasurer of the lodge. It is contended that this appellant cannot be held bound by the action of the subordinate lodge, and, therefore, what the latter may have known or done is wholly immaterial. Without entering into a discussion of the question at length, we are satisfied that, under the constitution and bydaws of the order, the relation of the subordinate lodges to the high court was that of agency. In associations of this character the relation of the members to the order is necessarily through the subordinate lodges, and, when a forfeiture of the certificate of insurance is insisted upon, it is proper to show that the subordinate lodge, with full knowledge of the alleged cause of forfeiture, continued to treat the insurance as in full force, receiving the member’s dues and paying the money over to the supreme lodge. We are unable to see how such societies could be conducted upon any other principle, without great injustice to the members. There was no error in admission of evidence.”
So, in the case at bar, the subordinate lodge of appellee at Chicago, known as the Tilden Council, must be regarded as sustaining a relation of agency to the supreme lodge of appellee. Under the facts, as already stated, the subordinate lodge, or its officers and members, had full knowledge of the fact that Wasserman was engaged, at least a part of the time, in selling liquor over the counter. With that knowledge the subordinate lodge continued to receive dues and assessments from him to the amount of $575.00 from June 4, 1894, to the date of his death on February 13, 1896, a period of one year and a little more than eight months. During all this time the insurance certificate was treated as being in full force, and Wasserman was received and treated as a member, notwithstanding the knowledge on the part of the officers and members of the subordinate lodge of the falsity of the statement contained in his application. Certainly, under the doctrine of Order of Foresters v. Schweitzer, supra, there was a waiver of the forfeiture of the certificate of insurance.
Counsel for appellee seek to draw a distinction between the case at bar and the case last above referred to, but we fail to see that there is any proper distinction between the two cases. It was certainly held in the Schweitzer case, that there could be a waiver of the enforcement of a requirement embodied in a by-law of a benefit society. It cannot be said that, because of the by-law which provided that applications should not be received from bar-keepers or from persons who at any time sold or served intoxicating liquors to be drunk on the premises, William Wasserman did not become a member of the appellee society, and that on that account there was no membership to be forfeited. In his application, submitted to appellee, he agreed that any untrue statemeut made therein should forfeit the rights of himself and his family, or dependents, to all benefits or privileges therein, both parties treating the falsity of the statement as a matter calling for the exercise of the right of forfeiture. Appellee, in its rejoinders to the
replications, admits that it admitted Wasserman as a member of the Royal Arcanum, and delivered to him the benefit certificate. The by-law is a direction to the persons whose duty it was to receive applications for membership. They were directed not to receive applications from bar-keepers, etc. The persons here, who were entitled to receive and did receive the application of Wasserman, were the officers and members of the subordinate council, known as the Tilden Council at Chicago. As the subordinate council acted as agent in the matter for the supreme council, the latter was bound by the knowledge of its agent. It follows that the appellee itself was affected with the same knowledge, which the subordinate council had. It would be unjust to hold that, having such knowledge, it could continue for a year and eight months .to recognize Wasserman as a member and receive dues and assessments from him, and yet, after his death, insist that he was never a member of the Royal Arcanum, or its subordinate council, at all. Having knowledge, as it must be presumed to have had from the present record, appellee should have taken steps to declare Wasserman’s membership forfeited. It has not, even since his death, offered to return the assessments and dues which he paid during his lifetime. Forfeitures are abhorrent to the law. (Hartford Fire Ins. Co.v. Walsh, 54 Ill. 164). The laws and rules of such associations as the appellee should be liberally construed, and, where an attempt is made to work a forfeiture by a benevolent association, its laws, rules and regulations will be most strictly construed against it. (Grand Lodge v. Brand, 29 Neb. 650; Union Mutual Accident Ass. v. Frohard, 134 Ill. 228). The retention of the money, paid as assessments afid dues under the circumstances here existing, and the failure to refund the money so received, or to cancel the certificate or contract sued on, indicate such a ratification and confirmation of the certificate or contract," as to estop the association from asserting the defense sought to be here set up. (Erdmann v. Mutual Ins. Co. 44 Wis. 381; Gray v. National Benefit Ass. Ill Ind. 539).
Counsel for appellee refer to the case of Moerschbaecher v. Royal League, 188 Ill. 9, as sustaining their contention in this case. In the case referred to, where a beneficiary certificate was issued to the appellant there and the application signed by him, the laws of the order precluded one, engaged in the business of keeping a saloon from becoming a member of the league, and, in his application for membership, the appellant there stated that he was not engaged in the occupation of a saloon-keeper; and it was there contended that the Royal League had waived, or become estopped to interpose, as a defense, the fact that the assured had engaged in the business of a saloon-keeper; but, there, the Appellate Court recited the facts in its judgment, and, among" the facts found by it and recited in its judgment, was “that the effect of the contract of Peter Moerschbaecher with appellant was not changed by any conduct or waiver upon the part of appellant, so as to entitle the beneficiary named in the contract to any right to benefits by reason of the death of Peter * * * occurring while engaged in the business of a saloon-keeper.” In that case the Appellate Court reversed the judgment of the lower court, and refused to remand the cause. It appears, however, that an issue was made, by replication and rejoinder thereto, upon the question whether the league accepted from Peter the dues and assessments, knowing that he had become engaged in the occupation of a saloon-keeper; and it is there said that “this issue was determined by the trial judge, sitting as the trier of the issues both of law and.fact, in favor of the appellant. The Appellate Court reversed the decision of the trial court, and, in the j udgment of reversal, recited its findings that the assured, in violation of his agreement, had engaged in the business of keeping a saloon, was engaged in that prohibited calling at the time of his death, and that the league had not, by way of waiver or estoppel, lost the right to insist said violation of the contract of insurance relieved the league from all liability to pay the mortuary benefit, contemplated by the contract or policy of insurance.” The Appellate Court there found that there was no waiver, and this court held that, as the question of waiver was a mixed question of law and fact, the finding of the Appellate Court was final and conclusive upon this court, and could not be here reviewed. Here, however, as has already been stated, the Appellate Court made no finding of facts.
We are of the opinion, therefore, that the trial court committed no error in refusing the second proposition submitted by appellee. The first proposition asked by appellee, and refused by the court, announced that, if the by-law in question continued in force until after the time of the death of William Wasserman, and he was a saloon-keeper and served or sold intoxicating liquors at the time of his application, he could not become a member of the appellee order, and the plaintiff could not recover in this action; but this proposition was defective in omitting any qualification as to knowledge and waiver on the part of appellee, or the subordinate council. The third proposition asked by the appellee, and refused by the trial court, assumed that there was an agreement between Wasserman and the officers and members of the subordinate council to conceal from the officers of the supreme council the fact, that Wasserman was engaged in the business of selling intoxicating liquors; but this proposition was properly refused because there was no evidence upon which to base it.
Third—It is claimed, however, by the appellee, that, under the laws of Massachusetts where the appellee association was organized and received its charter, there was no power in any subordinate council to waive a bylaw, such as that now under consideration. The views of the appellee upon this branch of the case were embodied in the fourth and fifth propositions submitted by it, and refused to be held as law. by the trial court. These propositions announced that, under the laws of Massachusetts, Wasserman could not become'a member of the appellee order, and that none of the local councils of appellee, their officers or members, bad the power or right to waive the provisions of its by-laws forbidding- the deceased to become a member of the defendant order; and that the rights of the deceased to become a member, as well as the power of the appellee to insure him, were governed by the law of Massachusetts.
Appellee refers to certain authorities, which hold that a corporation has no authority to create a fund for other persons than the classes specified in the law authorizing its organization, and that a member cannot direct a fund to be paid to a person outside of such classes. For example, in Palmer v. Welch, 132 Ill. 141, it was held that, where the statute of a State, under which a benefit or fraternal society is incorporated, provides that such corporations may be formed “for the purpose of assisting the widows, orphans or other relatives of deceased members, or any persons dependent upon deceased members,” the society or corporation will have no authority to create a fund for other persons than those included in the classes named; and that, in such case, the power of the corporation to issue the certificate, and the power of the member to designate the beneficiary, are controlled and limited by the statute. These authorities have no application here.
In the case at bar, the statute or law of Massachusetts, under which appellee was organized, was not introduced in evidence. The constitution and by-laws of the appellee were introduced in evidence, and the certificate of the secretary of the commonwealth of Massachusetts was also introduced, showing that the Supreme Council of the Royal Arcanum was organized for the purpose of “fraternal union, aid to its members and their dependents, the education, socially, morally and intellectually, of its members, assisting the wives and orphans of deceased members, establishing a fund for the relief of sick and distressed members, and one for widows’ and orphans’ benefit fund,” etc. Here, it is not denied that appellants, who are children of the deceased Wasserman, were properly named as beneficiaries in his certificate. No statute of the State of Massachusetts, but merely a by-law, or rule, or regulation of a corporation organized in Massachusetts was introduced in evidence. No law or statute of Massachusetts has been produced before us, which provides that applications shall not be received from persons selling or serving intoxicating liquors to be drunk, etc.
It is true that a decision of the Supreme Court of Massachusetts, to-wit: McCoy v. Roman Catholic Mutual Ins. Co. 152 Mass. 272, was introduced in evidence, which decision holds that the officers of a beneficiary association, organized under a certain statute of the State, have no authority to waive a by-law of the association, which provides that only persons of a particular class between the ages of twenty and fifty-one may become members. In the case last referred to, the applicant for insurance stated in his application that he was about forty-nine years of age, when, as a matter of fact, he was more than fifty-one years of age; it appeared there that the board of directors of the company consisted of about seventy-five members, and, while it did not appear conclusively that any officer of the corporation intended to waive the provisions of the by-laws, yet there was evidence, from which it might properly be inferred that the vice-president and three directors did intend to waive the same; and it was there held that, if the officers of the corporation had attempted to waive the by-laws in the particular named, they had no authority to do so. But the question there is not the same as the question here. The question here is not whether the vice-president and three directors of the appellee, or any other officers of the appellee, acting merely as officers, had the right to waive the by-law in regard to the sale of intoxicating liquors, but whether the subordinate council, or the officers and members of Tilden Council in Chicago, had the right to make such a waiver. The Massachusetts case does not decide that the "officers and members of a subordinate council of the appellee have not the power to waive such a by-law as that now under consideration.
Appellee, a foreign corporation organized under the laws of Massachusetts, was doing business in the State of Illinois, and In this- matter the laws of the State of Illinois are the laws which govern. The doctrine in this State is, that foreign corporations come into this State, not as a matter of legal right, but only by comity, and that such corporations are subject to the same restrictions and duties as corporations formed in this State, and have no other or greater powers. Foreign corporations cannot be permitted to come into this State for the purpose of asserting rights in contravention of our laws. (Hording v. American Glucose Co. 182 Ill. 551.) The contract of insurance between Wasserman and appellee was made in the State of Illinois. The insurance was solicited by appellee’s agent, the subordinate local council, at Chicago. Wasserman was a resident and citizen of Illinois. Wasserman’s examination, his signing of the application, his making of answers to the questions propounded to him, the payment of his dues and membership fees and assessments, all took place in Illinois. The benefit certificate was received and accepted by him in writing in Illinois. The law of the country where the contract is made governs its construction and determines its validity. (Bradshaw v. Newman, Breese, 133; Stacy v. Baker, 1 Scam. 417; Roberts v. Winton, 100 Tenn. 484; Indemnity Co. v. Berry, 50 Fed. Rep. 511.) The by-laws, introduced in evidence in this case, require a written acceptance of the benefit certificate by the applicant, and the proof shows that the same was accepted by
Wasserman in writing in Illinois. The benefit certificate, issued to Wasserman, specifies no place where the benefit shall be paid in the event of the death of the insured, and it, therefore, follows that the same is payable, and the contract of insurance is to be performed where it was made, that is to say, in Illinois. A contract is to be performed where it is made and entered into, unless a place of performance is specified in it. (Lewis v. Headley, 36 Ill. 433; McAllister v. Smith, 17 id. 328; Roundtree v. Baker, 52 id. 241.) Inasmuch as the lex loci contractus, the lex domicilii, and the lex loci solutionis all concur here, the contract of insurance must be regarded as an Illinois contract, made, accepted and consummated in Illinois, and to be performed in Illinois. Therefore, it is governed by the laws of Illinois.
For the reasons above stated, we are of the opinion that the trial court committed no error, in refusing the propositions of law which were submitted to it by the appellee. It follows, therefore, that the Appellate Court erred in reversing the cause, and refusing to remand it.
The writer of this opinion entertains the view that the judgment of the Appellate Court ought to be reversed and the cause remanded to that court with directions to affirm the judgment of the circuit court; but, in conformity with the opinion of the majority of the court, the judgment of the Appellate Court is reversed, and the cause is remanded to that court with directions to enter such judgment, reversing and remanding, or affirming the judgment of the circuit court, as, in their judgment, may be proper, or reciting in their judgment the facts found by them, if any such final determination of the cause is made by them, as is provided for in section 87 of the Practice act. Leave is given to withdraw the record of the circuit court filed in this court for the purpose of filing it in the Appellate Court.
Reversed and remanded.