The opinion of the Court was delivered by
Mr. Justice Gary.
As one of the questions raised by the appeal arises out of a demurrer to the complaint, it will be incorporated in the report of the case.
1
The first exception is as follows: “First. Because his Plonor erred in refusing to sustain the oral demurrer, and overruling the same. Whereas, his Honor should have held that inasmuch as it appears upon the face of the complaint that the cause of action is the alleged certificate of membership or insurance issued by the defendant, it being alleged to be a mutual benefit or assessment society; and it further appearing therefrom that the promise to pay is not absolute, but from out of the mortuary fund of the said Bankers Union of the World, and there is not allegation in the complaint showing the existence of such mortuary fund, or that there was or is sufficient sum in said mortuary fund to pay the said alleged claim of $2,000, the complaint does not state facts sufficient to constitute a cause of action, and the demurrer should have been sustained.” The com
plaint alleges that the defendant issued and delivered to E. B. Hollings a certificate of membership and a certificate of insurance on his life, whereby it provided and agreed that upon receipt by the supreme lodge of satisfactory proof of his death, together with the surrender of said policy, the sum of $2,000 would be paid within sixty days, at its office in the city of Omaha, State of Nebraska, out of the mortuary fund of the Bankers Union of the Wodd to Annie M. Hollings, his wife, Charleston, S. C. It was the duty of the defendant to take such steps as were necessary to have the mortuary fund on hand at the time specified to pay the plaintiff’s claim, in case there was compliance with the conditions and requirements of the policy of insurance. The plaintiff had the right to assume that the defendant would perform its duty by having the mortuary fund on hand at the time specified. If there were reasons why the claim could not be paid out of the mortuary fund, and the defendant desired to avail itself of such fact, the proper practice was to allege them as a defense in its answer to the complaint. Furthermore, the complaint alleges the performance by E. B. Hollings and the plaintiff of all the conditions and requirements of the policy of insurance on their part. Even if it should be considered as a condition precedent to a recovery on the policy that the defendant could not be sued until it had a mortuary fund sufficient to pay the claim, .nevertheless, under sec. 183 of the Code, the plaintiff had the right to show performance thereof
on the trial.
That section is as follows: “In pleading the performance of conditions precedent in a contract, it shall not be necessary to state the facts showing such performance, but it may be stated generally that the party duly performed all the conditions on his part; and if such allegations be controverted, the party pleading shall be bound to establish on the trial the facts showing such performance. * * *”
2
The second exception is as follows : “Second. Because his Honor erred in charging: ‘The delivery of the certificate of policy of insurance, whether the party we’re sick or not (if
done by the agents of the defendant), was a waiver of any representation of the deceased, and the receipt of the dues by the agents of the Bankers Union was an acknowledgment that the deceased, E. B. Hollings, was a member of the order, and entitled to all of its benefits under the policy. Gentlemen, I charge you that with an amendment : If the agent of the defendant knew at the time of the delivery of the -certificate or policy of insurance whether the party was sick or not. ánd knew he was sick, and delivered the policy, then it would be a waiver. A waiver implies the idea that one has a right, and with knowledge of his rights and that which might defeat his rights, does an act by which he waives the right to stand upon his legal position or his legal right.’ ” It will be observed that this -exception does not specif}' in what the alleged error consists; but waiving this objection and considering the grounds upon which the appellant’s attorney argues that there was error, it cannot be sustained. This ground is that the Circuit Judge cannot state to the jury what facts constitute waiver. As a general proposition, this is a correct statement of the law. Waiver is a mixed question of law and fact. It is the duty of the Court to charge and define the law applicable to- waiver, but it is the province of the jury to say whether the facts of the particular case constitute waiver, as defined by the Court. When, however, but one inference can be drawn from the facts, it is not error for the Court to charge the jury that they constitute waiver. If the defendant knew at the time it accepted the premium of insurance and delivered the policy that E. B. Hollings was sick, there is but one inference of which this fact is susceptible, -and that is that the defendant waived the right to insist upon this objection, otherwise it would be allowed to take advantage of its o-w-n wrong.
3
The third exception is as follows: “Third. Because his Honor erred in charging: Tf the applicant, E. B. Hollings, had fulfilled all of the requirements entitling him to a certificate, and the Bankers Union had failed to deliver the certificate of insurance after it had been- issued,
•and the applicant, E. B. Hollings, had then become sick, and was entitled to the policjr or certificate of insurance upon the payment of his assessments or dues, the company was liable, whether the certificate had been delivered or not, if the said E- B. Hollings was in good health at the time of the examination by the company’s medical examiner, and the date of the policy of insurance.’ That is I think good law, and if the company had a reasonable time to deliver the policy to him. The same principle applies here, that when where -one obligates himself to do a certain act, whether an individual or a corporation, and there is time stipulated within which the act is to be done, the law is, that it has to be done in a reasonably prompt time. So, if Mr. Hollings, or any one else, makes a contract with an insurance company for insurance, and complies with all of the conditions on his part, and the company accepts it and agrees to insure him, and then if no time be stipulated when the company is to actually ■ deliver the policy of insurance, the -law is that it deliver it, according to business principles and legal rights, in a reasonably practicable time — does it promptly.” This exception is amenable to the objection that it fails to specify the particular in which the error consists. The appellant’s attorneys, in their argument, contend that it was a charge on the facts, but they do not point out wherein it was a charge on the facts. Even waiving the foregoing objection to the exception, we have failed to discover wherein the charge was in violation of law.
The fourth exception is as follows: “Fourth.
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The opinion of the Court was delivered by
Mr. Justice Gary.
As one of the questions raised by the appeal arises out of a demurrer to the complaint, it will be incorporated in the report of the case.
1
The first exception is as follows: “First. Because his Plonor erred in refusing to sustain the oral demurrer, and overruling the same. Whereas, his Honor should have held that inasmuch as it appears upon the face of the complaint that the cause of action is the alleged certificate of membership or insurance issued by the defendant, it being alleged to be a mutual benefit or assessment society; and it further appearing therefrom that the promise to pay is not absolute, but from out of the mortuary fund of the said Bankers Union of the World, and there is not allegation in the complaint showing the existence of such mortuary fund, or that there was or is sufficient sum in said mortuary fund to pay the said alleged claim of $2,000, the complaint does not state facts sufficient to constitute a cause of action, and the demurrer should have been sustained.” The com
plaint alleges that the defendant issued and delivered to E. B. Hollings a certificate of membership and a certificate of insurance on his life, whereby it provided and agreed that upon receipt by the supreme lodge of satisfactory proof of his death, together with the surrender of said policy, the sum of $2,000 would be paid within sixty days, at its office in the city of Omaha, State of Nebraska, out of the mortuary fund of the Bankers Union of the Wodd to Annie M. Hollings, his wife, Charleston, S. C. It was the duty of the defendant to take such steps as were necessary to have the mortuary fund on hand at the time specified to pay the plaintiff’s claim, in case there was compliance with the conditions and requirements of the policy of insurance. The plaintiff had the right to assume that the defendant would perform its duty by having the mortuary fund on hand at the time specified. If there were reasons why the claim could not be paid out of the mortuary fund, and the defendant desired to avail itself of such fact, the proper practice was to allege them as a defense in its answer to the complaint. Furthermore, the complaint alleges the performance by E. B. Hollings and the plaintiff of all the conditions and requirements of the policy of insurance on their part. Even if it should be considered as a condition precedent to a recovery on the policy that the defendant could not be sued until it had a mortuary fund sufficient to pay the claim, .nevertheless, under sec. 183 of the Code, the plaintiff had the right to show performance thereof
on the trial.
That section is as follows: “In pleading the performance of conditions precedent in a contract, it shall not be necessary to state the facts showing such performance, but it may be stated generally that the party duly performed all the conditions on his part; and if such allegations be controverted, the party pleading shall be bound to establish on the trial the facts showing such performance. * * *”
2
The second exception is as follows : “Second. Because his Honor erred in charging: ‘The delivery of the certificate of policy of insurance, whether the party we’re sick or not (if
done by the agents of the defendant), was a waiver of any representation of the deceased, and the receipt of the dues by the agents of the Bankers Union was an acknowledgment that the deceased, E. B. Hollings, was a member of the order, and entitled to all of its benefits under the policy. Gentlemen, I charge you that with an amendment : If the agent of the defendant knew at the time of the delivery of the -certificate or policy of insurance whether the party was sick or not. ánd knew he was sick, and delivered the policy, then it would be a waiver. A waiver implies the idea that one has a right, and with knowledge of his rights and that which might defeat his rights, does an act by which he waives the right to stand upon his legal position or his legal right.’ ” It will be observed that this -exception does not specif}' in what the alleged error consists; but waiving this objection and considering the grounds upon which the appellant’s attorney argues that there was error, it cannot be sustained. This ground is that the Circuit Judge cannot state to the jury what facts constitute waiver. As a general proposition, this is a correct statement of the law. Waiver is a mixed question of law and fact. It is the duty of the Court to charge and define the law applicable to- waiver, but it is the province of the jury to say whether the facts of the particular case constitute waiver, as defined by the Court. When, however, but one inference can be drawn from the facts, it is not error for the Court to charge the jury that they constitute waiver. If the defendant knew at the time it accepted the premium of insurance and delivered the policy that E. B. Hollings was sick, there is but one inference of which this fact is susceptible, -and that is that the defendant waived the right to insist upon this objection, otherwise it would be allowed to take advantage of its o-w-n wrong.
3
The third exception is as follows: “Third. Because his Honor erred in charging: Tf the applicant, E. B. Hollings, had fulfilled all of the requirements entitling him to a certificate, and the Bankers Union had failed to deliver the certificate of insurance after it had been- issued,
•and the applicant, E. B. Hollings, had then become sick, and was entitled to the policjr or certificate of insurance upon the payment of his assessments or dues, the company was liable, whether the certificate had been delivered or not, if the said E- B. Hollings was in good health at the time of the examination by the company’s medical examiner, and the date of the policy of insurance.’ That is I think good law, and if the company had a reasonable time to deliver the policy to him. The same principle applies here, that when where -one obligates himself to do a certain act, whether an individual or a corporation, and there is time stipulated within which the act is to be done, the law is, that it has to be done in a reasonably prompt time. So, if Mr. Hollings, or any one else, makes a contract with an insurance company for insurance, and complies with all of the conditions on his part, and the company accepts it and agrees to insure him, and then if no time be stipulated when the company is to actually ■ deliver the policy of insurance, the -law is that it deliver it, according to business principles and legal rights, in a reasonably practicable time — does it promptly.” This exception is amenable to the objection that it fails to specify the particular in which the error consists. The appellant’s attorneys, in their argument, contend that it was a charge on the facts, but they do not point out wherein it was a charge on the facts. Even waiving the foregoing objection to the exception, we have failed to discover wherein the charge was in violation of law.
The fourth exception is as follows: “Fourth. Because his Honor erred in charging: ‘That a tender, or the return of the premiums, or a less sum than the retufn of the premiums and amounts paid -in after the death of the insured, is unavailable as a defense, or that the Bankers Union could thus attempt to cancel its contract, this certificate having been delivered.’ That is correct. Parties making a contract, they must stand to it, -and one party cannot revoke the contract at his will.” What we have just said in considering the third exception disposes of this exception.
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.