The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1895-10-16
EMMELUTH VERSUS COOK,
Supreme Court Decision Opinion
by Judge Frear.
Opinion
Holders 81 Policies a. Collateral May
Pay Premiums and Collect from
PIedgor= When Possible.

In the celebrated case of John En-
meIuth versus John Cook, a decision
was handed down yesterday.
This is the case in which Emmelutb,
as pledge Of certain certificates of in
surance in the American Legion Of
Honor, sued Cook to recover the sum
OF S1O14 paid out as assessments and
SIP interest. 1t is as follows:
In January, 1892, the defendant
being unable to- to meet the assess
ments payable upon the benefit GER
tificates Of himself and his wife, as
companions in the American Legion
of Honor, delivered the certificates to
the plaintiff as security for advances
to be made by him to pay such assess
ments, the advances To bear interest
at the rate OF nine per cent. per an
mum. This action OF assumpsit Is
brought to recover the advances so
made from February l, 1892, to July 3,
1895, amounting To SlOl4, with Sl42
interest.
The defendant claimed that he was
not personally liable, that he did not
promise TO reimburse the plaintiff, but
that the latter was to ray the assess
ments, IL at all, solely on his own res
possibility, and look for reimburse
ment only to the moneys payable on
the certificates upon the death of the
defendant or his wife respectively,
the certificates being somewhat of the
nature of life insurance policies. He
also claimed that, whatever may have
been the agreement prior to Septem-
Der, 1891, he was in no way liable for
payments made thereafter, as he had
atA that time repudiated all response
bi ity in the matter.
From the evidence adduced it APP |
pears that the defendant promised to |
reimburse the plaintiff as soon as he |
should be able to do so and that after |
ne had acquired legacy of several |
times the amount he was able TO |
liquidate the obligation.
The only question to be considered !
on the exception Is whether the jury |
were correctly charged in substance |
that upon these facts the law would |
imply a promise on the part of the de- |
PENDANT to repay assessments ad- |
vanced even after notice to discon-
tinue them, If 1t were necessary for \
the plaintiff to pay them in order to |
preserve his security for prior pay |
ments. 1t is well settled that where I
one is obliged to pay for his own pro-
lection what il is the duty of another
to pay, the law recognizes both re-
quest to pay and promise to reim-
burse. 1t must be taken as n fact in
this case that the plaintiff was obliged
to make subsequent payments in or
der to preserve his security for the
prior payments, for the certificates
would become void If the assessments
were not paid. Was it, however, the
duty of the defendant to keep the GER
tificate or policy alive until he had
paid to the plaintiff the amount of the
debt for which the certificate was
pledged as security? This is a ques-
ton not without difficulty, but it
seems upon general principles that,
in the absence of an agreement to |
the contrary, when one pledges
a. security of this nature he
implicitly undertakes to keep it alive
for the benefit of the Pledge so long
rs il remains as security for his debt,
and that therefore upon his default,
the Pledge is entitled to do what he,
the pledgor, should have done and to
look TO him for reimbursement. This
seems to be the law elsewhere in the
case OF pledges of ordinary policies of
and the reason would be
stronger in cases of benefit certificates
Of the kind in question which pos
sesSes no cash or paid up value upon
surrender.
The exceptions are overruled. Car
ter d Kinney and s. NJ. Ballou for
plaintiff. ]. y. Magoon and p. Neu-
mann for defendant.
Opinion is signed by a. +. Judd, c.
J., w. +. Frear and w. Austin Whit
ing sitting instead of Justice Bick-
srton.