GRAND LODGE, OHIO DIVISION, INDE'PE:\!DENT FORESTERS.
(CITcuit CouTt,N. D. Ohio, E. D.
April Term, 1883.)
BEXEFICBL SoCIETY-SUIT TO RECOVER llEXEFIT-SUSPENDING URE TO PAY DUES.
S. was a member or' B Bubora!natc lodlTc of defendant, and thereby, by the. constitution and by-laws, became a memetier of the grand lodge. The death assessmcnts werc required to be collected by the subordinate lodge and for-wanled to the grand lodge, the s\l.bordinfltc lodge.bein,gcompelled to alcount, for these assc5smentsand pay them to. t4e grand lodge, the member had.
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SCHEU V. GRAND LODGE, o III V DIVISION,
been expelled or suspended. The assessment of S. was paid by the subordinate lodge to the grand ludge, but at the time of his death had not hcen paid.by him to the subordinate lodge. The by laws provided that" any memoer falling to pay his assessment wlthin 30 days should be suspendec'," and that notice. should be given to the grand secretary of the grand lodge. On U''l death of S. Ilia widow brought suit for the amount due him from the grand lodge. lleld, that the mere nOll-payment of the assessment did not of itself operate as a suspension, and that the act of the secretary in marking So's account !IS "S1\Spended" was not sutlicicnt, as such suspension must he made by some affirmative net of the loul:e, and- by pnyment of the assessment for him to the grand lodge it had waived his suspension. and ns the l:rnnd lodge received the assessmen t a recovery could be had in a suit against it.
Tried to the court and finding for the plaintifI, and motion for new trial. Mr. TVilcox, for plaintiff. Ifcndct'son cf; Klinc, for defendant. WELKER, J. The plaintiff is the wife and heir at law of Alberf Scheu, WllO died on the second day of April, 1880. The intestate, on the sixteenth day of December, 1879, became a member of Sahbeie Lo(lge, a subordinate lodge of the and thereby, by the constitution and by-laws, became a member the defendant lodge. The suit is to recover the sum of $1,000, provided by the by-laws to be paid ,the widow.or heirs of a member on his death. The defendant claims that Scheu; at the .time of his death, was not such a member of the subordinate or grand as entitled his widow to recover said amount, having before that time. ,been suspended by the subordinate lodge for non:payment of assessment. It appeared in the evidence that before the death of the intestate an assessment of one dollar had made on all the members of the defendant lodge, for the purpose of paying the amount which any member's representatives should be entitled, to receive on his death, being what is termed in the by-law;; "the widows and orphan's benefit fund." This death assessment was required to be collected, by the subordinate lodge, and immediately forwarded to the treasurer of the grand lodge. The subordinate lodge was relJuired to acconnt for these assessments and pay to the grand lodge the amount so assessed, unless mfmbers thus assessed had been expelled or by the subordinate lodge, and so not mem bel'S of grand lodge. The intestate had not paid the death assessment so made upon him before his death; but the subordinate lodge had paid it to the grand lodge; and as to the defendant, the grand lodge, the assessment had been paid before his death. The evidence showed that on the books of the subordinate lodge, where accounts of dues and assessments were kept, black lines were dmwn around the intestate's account, and marked "suspended" for non-payment of assessment. When. that was done by tlJe officer iIi charge of the books was left uncertain. There was no record of the subordinate lodge, showing any action of the lodge in reference to the sus.pension or expulsion of the intestate, besides what appears as before stateJ. No report was made or notice given to the grand lodge of
Buspension of the intesbte for such non-pn,yment. In Hie hy-laws of the lodge it is provided that "any member failing to pay sucP. assessment within 30 days shall be suspended from his lodge." And it is also provided that notice of such suspension shall be at once given to the grand secretary of the grand lodge. It also appears that the intestate, after the time for the payment of the assesssment bad elapsed, had notice that he was in arrears, by objection in open lodge to his taking part in the business before it on accuunt of the non-payment of the assessment. If the intestate was in fact Buspended by the subordinate lodge for this non-payment of the assessment at the time of his death, the plaintiff is not entitled to recover. The mere non-payment of the assessment does not of itself operate as such suspension; nor does the clerical act of the secretary in so marking the account make such suspension. The suspension must be made by some affirmative action of the lodge, and no snch action appears to have been taken by the subordinate lo(lge. Snch may be waived by the lodge either expressly, or by failnre to act. And it may itself advance the payment to the grand lodge, which appears to have been the fact in this case. Tile defendant lodge, which is alone liable to pay the plaintiff, hall in fact received the amonnt of the as-lessment, and thereby had been paid the consideration for its oblign.tion to pay sald SUIll on the death of the intestate. The motion is, therefore, overruled, and ju(lgmtlm for the plaintiff.
(CircuU Court, D. California. Fcbruary 12, 1883.) 1.
GENF.Tl.H, Rm.E Ol" DAMAGES.
'l'he general rule is that no damages can be recovered until they shall have actual I)' u. ,lied; and tlut an RClion cannot ue rnaintainell on a mere I.ahil.ty to .1 · hird party to whieh a p1:lintiII has heen suhjected hy thc act of the defendSill. The plaintiff, in such a ea'c. mnst alJe.!!e and prove that he has Incurred actual damage, by showing the paymeut or other satisfactIOn of such hallllity.
A stranger eummitting c up 'n premisc3 leasert, or held by 1\ particul:1r estate, is I,ahl,' to the tcnant for the injury to the pus"e,sion, and to the lamllord. or revcl">lioner, for thc injury to IhefrcdJOld orinheritanl'e. The riglItof eal'h is d stinct from that of the othcr, sUlI satisfactiun maJe to the oue is no oar to 1111 action brought uy the otlIer.
LtAnn.TTY Ol" 'T'1l:NANT FOR 'VASTE, Ay.,"1) rns TITOTtTS AO\TNST 1'rlESPM,sER.
The tenant is answcrnhle to the lanrtlonl, or reveJ"!lioner, for waste done by a stran!!cr. lIe has his re.ncdy overaga,ns\. the stranger, uut 1hc tenant'!' recovery against the strnnger for injnries to thc frech.,ld, or reversion, is dependl'nt on his first having AAtisfled the lanrtlom"s clllim uy payment, or repair of the injured premises; snd, in such case, the stranger is llablu ouly for the payment, or expunse nec(·.'srily incurreJ. Ii"uua v. GtiJlin, 46.N. 11.231, approved and folluwed.