{ "id": 5174174, "name": "Benjamin J. Schiff, for use, etc., v. Supreme Lodge Order of Mutual Protection", "name_abbreviation": "Schiff v. Supreme Lodge Order of Mutual Protection", "decision_date": "1896-05-14", "docket_number": "", "first_page": "341", "last_page": "344", "citations": [ { "type": "official", "cite": "64 Ill. App. 341" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "60 Ill. App. 550", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5156056 ], "opinion_index": -1, "case_paths": [ "/ill-app/60/0550-01" ] }, { "cite": "59 Ill. App. 390", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5154018 ], "opinion_index": -1, "case_paths": [ "/ill-app/59/0390-01" ] }, { "cite": "135 N. Y. 107", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2255004 ], "opinion_index": -1, "case_paths": [ "/ny/135/0107-01" ] }, { "cite": "125 Ind. 52", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1385095 ], "opinion_index": -1, "case_paths": [ "/ind/125/0052-01" ] }, { "cite": "120 Ind. 270", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1375162 ], "opinion_index": -1, "case_paths": [ "/ind/120/0270-01" ] }, { "cite": "10 N. Y. Supp. 916", "category": "reporters:state", "reporter": "N.Y.S.", "case_ids": [ 5693332 ], "opinion_index": -1, "case_paths": [ "/nys/10/0916-01" ] }, { "cite": "79 Pa. St. 478", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 438446 ], "opinion_index": -1, "case_paths": [ "/pa/79/0478-01" ] }, { "cite": "13 Atl. Rep. 755", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": -1 }, { "cite": "38 Mass. 575", "category": "reporters:state", "reporter": "Mass.", "opinion_index": -1 }, { "cite": "129 Mass. 70", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 2133423 ], "opinion_index": -1, "case_paths": [ "/mass/129/0070-01" ] }, { "cite": "70 Ga. 340", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 27689 ], "opinion_index": -1, "case_paths": [ "/ga/70/0340-01" ] }, { "cite": "2 Daly 329", "category": "reporters:state", "reporter": "Daly", "opinion_index": -1 }, { "cite": "81 N. Y. 508", "category": "reporters:state", "reporter": "N.Y.", "opinion_index": -1 }, { "cite": "147 Ill. 138", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 833757 ], "opinion_index": -1, "case_paths": [ "/ill/147/0138-01" ] }, { "cite": "148 Ill. 305", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "33 Ill. App. 168", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4987191 ], "opinion_index": -1, "case_paths": [ "/ill-app/33/0168-01" ] }, { "cite": "137 Ill. 417", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5440856 ], "opinion_index": -1, "case_paths": [ "/ill/137/0417-01" ] }, { "cite": "114 Ill. 108", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2871632 ], "opinion_index": -1, "case_paths": [ "/ill/114/0108-01" ] }, { "cite": "3 Gilm. 537", "category": "reporters:state", "reporter": "Gilm.", "case_ids": [ 2462462 ], "opinion_index": 0, "case_paths": [ "/ill/8/0537-01" ] }, { "cite": "152 Ill. 214", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 835355 ], "opinion_index": 0, "case_paths": [ "/ill/152/0214-01" ] }, { "cite": "137 Ill. 580", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5440171 ], "opinion_index": 0, "case_paths": [ "/ill/137/0580-01" ] }, { "cite": "136 Ill. 499", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2992232 ], "opinion_index": 0, "case_paths": [ "/ill/136/0499-01" ] }, { "cite": "147 Ill. 138", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 833757 ], "opinion_index": 0, "case_paths": [ "/ill/147/0138-01" ] }, { "cite": "33 Ill. App. 168", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4987191 ], "opinion_index": 0, "case_paths": [ "/ill-app/33/0168-01" ] }, { "cite": "137 Ill. 417", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5440856 ], "opinion_index": 0, "case_paths": [ "/ill/137/0417-01" ] } ], "analysis": { "cardinality": 529, "char_count": 8221, "ocr_confidence": 0.559, "pagerank": { "raw": 3.003949336366528e-07, "percentile": 0.8527255836151065 }, "sha256": "5e93b160166f6f0cf3b620c6cdb0c4adc10b9b8334bc5b8b1595a5498a8c5a39", "simhash": "1:eeba27c14dbf7b54", "word_count": 1456 }, "last_updated": "2023-07-14T18:42:36.948645+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Benjamin J. Schiff, for use, etc., v. Supreme Lodge Order of Mutual Protection." ], "opinions": [ { "text": "Mr. Presiding Justice Gary\ndeliveeed the opinion of the Couet.\nThe bill of exceptions is criticised as not containing all the \u201c evidence,\u201d because, instead of that word, \u201c testimony \u201d is used.\nThat distinction is a little too fine for every-day use. Garrity v. Hamburger Co., 136 Ill. 499; People v. Henckler, 137 Ill. 580.\nTwo questions of law are presented by the appellee in justification of the direction of the court below to the jury to find for the defendant.\nWe can not know whether-it was upon one or the other or both of those questions that the direction was made.\nFirst. The charter says that among the objects of the appellee are \u201cthe relief and aid of the families, widows, orphans\u201d of its deceased members. The certificate sued upon recites that Abraham Falk \u201c has been accepted as a member of the order,\u201d and that \u201c upon his death \u201d the lodge will, if he has kept good his standing, pay \u201c the amount of one assessment, not to exceed, however, the sum of two thousand dollars, to Benjamin J. Schiff, in trust for his children.\u201d Schiff sues for the use of- Falk\u2019s children, and the appellee says it should be for the use of his own children.\nThe appellee has no concern with the use.\nSchiff is the proper party to sue, and need name no use, and if he name one, the words are surplusage. Tedrick v. Wells, 152 Ill. 214; Boone v. Stone, 3 Gilm. 537.\nBesides, the declared objects of the order correct the imperfect grammar of these Teutons. Falk had the care of his own children on his heart.\nSecond. The certificate sued upon provides that the rights of the beneficiary \u201cshall be determined by the charter, constitution, laws, rules and regulations of the order in force at the time that the sum due hereunder is payable.\u201d\nThe by-laws provide that the claim of a beneficiary shall not be paid until it has been passed upon favorably by a subordinate lodge, and some higher officers; provides for appeals from one tribunal to another, and winds up with, \u201c members of the order and their beneficiaries shall not have the right to seek redress in courts of record until after the appeals herein above mentioned for redress shall have been exhausted by them.\u201d\n. Conditions of that character \u201cthat keep the word of .promise to our ear, and break it to our hope,\u201d of which it is safe to say that of those who take membership in benefit \u25a0societies but a very small minority ever have any knowl-edge, are always most strictly construed, and \u201c a strained interpretation will be resorted to if necessary to avoid\u201d \u2022them. Ry. Conductors\u2019 Ben. Ass\u2019n v. Robinson, 147 Ill. 138.\n\u25a0 Here no such straining is needed. It is only necessary to .adhere to the letter, without extending the condition to a case that may be within the spirit, but not within the letter of the condition. In words, it embraces only \u201c members of the order and their beneficiaries.\u201d\nThe appellant is neither. He is a trustee for the beneficiaries, and sues upon a contract with himself. He might sue without alluding in his pleading to the uses.\n\u2022 The brief of the appellant anticipates that the appellee would object that the remedy was only in chancery, and cites Metropolitan, etc., v. Windover, 137 Ill. 417, and Ring v. United States, etc., 33 Ill. App. 168, to show the contrary.\nThose cases are not quite in point, and the question is not really before us; but it is a general rule that upon breach of a promise, assumpsit will lie whether the promise be to pay absolutely a sum of money, or to do some other thing.\nA promise to pay \u201c the amount of one assessment \u201d includes a promise to make the assessment; and the presumption, unless the contrary be shown, would seem to be that such assessment would provide enough to pay the sum designated; ; and if the fact be otherwise, it is easy for the lodge to show it.\nThe judgment is reversed and the cause remanded.", "type": "majority", "author": "Mr. Presiding Justice Gary" } ], "attorneys": [ "Booth & Booth, attorneys for appellant.", "Walker, Judd & Hawley, attorneys for appellee," ], "corrections": "", "head_matter": "Benjamin J. Schiff, for use, etc., v. Supreme Lodge Order of Mutual Protection.\n1. Practice \u2014Suits for the Use of Another.\u2014Where a person brings a suit for the use of another, it is of no concern to the defendant for the ' use of wh'at person the suit is brought. A party entitled to sue need name no usee, and if he does, the words used in so doing are surplusage.\n2. Assumpsit\u2014The Proper Form, of Action Against Beneficiary Associations. \u2014Assumpsit will lie upon the breach of a promise whether the promise is to pay absolutely a sum of money or to do some other thing, and a promise by a beneficiary association to pay the amount of one assessment includes a promise to make the assessment.\n3. Beneficiary Associations\u2014Construction of Conditions in ByLaws.\u2014Conditions of a by-law providing that the claims of beneficiaries shall not be paid until passed upon favorably by a subordinate lodge, and for appeals from one tribunal to another, and that members of the order and their beneficiaries shall have no right to seek redress in the courts until after the appeals mentioned for redress shall have been exhausted by them, are always most strictly construed, and a strained interpretation will be resorted to if necessary to avoid them.\n4. Bill of Exceptions\u2014Certificate that it Contains all the Testimony.\u2014A certificate to a bill of exceptions, stating that it contains all the \u201c testimony,\u201d is equivalent to saying that it contains all the evidence.\nAssumpsit, on a beneficiary certificate. Appeal from the Superior Court of Cook County; the Hon. Arthur H. Chetlain, Judge, presiding.\nHeard in this court at the March term, 1896.\nReversed and remanded.\nOpinion filed May 14, 1896.\nBooth & Booth, attorneys for appellant.\nThe point was raised in the lower court, and may be here again, that the proper remedy was in chancery, and the case of Benefit Ass\u2019n v. Sears, 114 Ill. 108, relied upon to sustain the position. The Supreme Court in that case, where the certificate of membership contemplated the levying of an assessment for each death, did not decide that assumpsit would not lie, but that chancery might be resorted to as affording a more adequate remedy.\nWe cite upon this point, if raised, Metropolitan Mutual Ac. Ass\u2019n v. Windover, 137 Ill. 417; Ring v. U. S. L. & A. Ass\u2019n, 33 Ill. App. 168.\nWhile the rules and by-laws of a benefit association will be generally upheld by the courts if they are reasonable and just, yet it is a well recognized principle of law that even a strained construction will be resorted to in order to avert a forfeiture or loss. Bacon, Ben. Soc., Secs. 86 and 352; N. W. Trav. Men\u2019s Ass\u2019n v. Schauss, 148 Ill. 305; Railway Conductors\u2019 Ben. Ass\u2019n v. Robinson, 147 Ill. 138.\nWalker, Judd & Hawley, attorneys for appellee,\ncontended that when the contract requires a member or his beneficiary to submit his claims to a tribunal of the society, and in case of an adverse decision on it, t\u00f3 appeal to certain appellate tribunals, he has no right to bring an action on the claim in the courts of the land until he has exhausted his remedies in the courts of the society. Where the bylaws provide that the decision of a subordinate tribunal shall be final, unless reversed on appeal by the supreme council, a member who is dissatisfied with the decision of the lo wer tribunal must, before resorting to the courts of'the land, appeal to the supreme council of the society. Where the by-laws of a society provide that the board of trustees shall examine all claims of members for sick benefits, and, if found correct, shall order the same to be paid, a member may not resort to a suit at law for such benefits, without giving the board an opportunity to examine his claim. Citing Poultney v. Bachman, 31 Hun (N. Y.) 49; Lafond v. Deens, 81 N. Y. 508; White v. Brownell, 2 Daly 329; Harrington v. W. B. Association, 70 Ga. 340; Chamberlain v. Lincoln, 129 Mass. 70; Reed v. Insurance Co., 38 Mass. 575; Ellison v. Bignold, 2 Jac. & W. 505; McAlees v. Supreme Sitting (Penn.), 13 Atl. Rep. 755; Mentz v. Insurance Co., 79 Pa. St. 478; Brenenan v. Association, 3 W. & S. (Pa.), 218; Burns v. Union, 10 N. Y. Supp. 916; Supreme Sitting v. Stein, 120 Ind. 270; Supreme Council v. Forsinger, 125 Ind. 52; Anderson v. Supreme Council, 135 N. Y. 107; Woman\u2019s C. O. F. v. Keefe, 59 Ill. App. 390; Grand Lodge K. P. v. People ex rel., 60 Ill. App. 550." }, "file_name": "0341-01", "first_page_order": 339, "last_page_order": 342 }