23 A. 623
Supreme Court of New Hampshire Strafford.
Decided June, 1889.
ASSUMPSIT, by the guardian of two children of Joseph S. Cowan, deceased, upon a certificate of membership issued to Joseph by the defendants, in which they promised to pay “within sixty days after due proof of” his death “a sum equal to the amount received from one death assessment, but not to exceed $5,000.” The defendants demurred.
When the plaintiff brought the suit at law, he also filed a bill in equity against the defendants, praying that they be ordered to make an assessment, “and hold the same, subject to any judgment” the plaintiff might recover in the suit at law. In their answer, the defendants say that Joseph obtained the certificate by false representations, and by the concealment of material facts in regard to his health and the risk which he asked the defendants to assume.
Facts agreed. The defendants have no capital or reserved fund. If the amount described in the certificate can be recovered, it is to be raised by an assessment on the members of the association who were liable to be assessed at the time of his death; and their payment of assessments is optional, the only consequence of nonpayment being loss of membership.
Dodge Caverly, for the plaintiff.
Albin Martin and J. Kivel, for the defendants, cited 1 Whar. Cont., s. 598; 1 Edw. Bills, s. 157; Ball v. G. S. M. A. Asso., 64 N.H. 291, 293; Smith v. C. M. B. Asso., 24 Fed. Rep. 685; Bailey v. M. B. Asso., 71 Iowa 689; Tobin v. W. M. A. Soc., 72 Iowa 261; Newman v. C. M. B. Asso., 72 Iowa 242; B. Asso. v. Sears, 114 Ill. 108; Van Houten v. Pine, 36 N. J. Eq. 133; 1 Sto. Eq. Jur., s. 29; High Ex. Rem., ss. 25-28; Bellows v. Bellows, 58 N.H. 60.
DOE, C.J.
The defendants admit that their contract, if binding, may be specifically enforced on the plaintiff’s bill in equity. The question of fraud may properly be tried by jury (Tasker v. Lord, 64 N.H. 279, 283); and all questions of fact will be determined, by the jury or by the court, at one trial. When the facts are found, the suit at law may not be needed. The question whether that suit can be maintained with or without an amendment of the declaration, is postponed until its examination appears to be necessary.
Case discharged.
CARPENTER, J., did not sit: the others concurred.
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