Manchester Democrat. [volume] (Manchester, Iowa) 1875-1930, 1899-09-13

when it was thought that the former {
certificate could be absolutely assigned {
in payment of the debt. Again, the
subsequent history of the transaction
shows that Belknap did not rely upon
this alledged contract, as he paid all the
assessments on certificate 6O514, and
never attempted to assert his rights un-
DIR the contract, if any he had. Evi.
IDENTIFY neither party to the instrument
many of its stipulations contain recitals
which both parties recognize as contrary
to the facts, the court Is of the opinion
that Exhibit E should have very little
bearing upon the questions at issue.
Upon the cancellation of certificate
$685. and pursuant to the request of Mr..
Belknap the Association issued the new
certificate numbered 6O514, referred to
therein, naming Ellen G. Johnston or
her heirs, said Ellen q. Johnston being
a creditor" as beneficiary. This desig-
nation was authorized by the organic
law of the Association and cOnfOrmed
to the laws of Illinois under which the
defendant Association was created. At
the same time certificate 4515 was can
celled and new one issued making
Belknap's wife the beneficiary, and sub
sequently Belknap revoked the requests
to Mrs. Johnston referred to.
at the time the original applications
were signed and delivered there was
nothing in either the laws of this state
or of the state of Illinois to prevent
Belknap designating creditor as ben
eficiary, but before the issuing of policy
60.514, chapter IS of the laws of the
Twenty first General Assembly had
been enacted, and it is claimed by
/ To- ral CO.. 1o;1 hot Canfinv,
thereof applies to foreign associations
quently prohibited the making of
creditor the beneficiary, while defend
ant contends that the section only ap-
plies to domestic companies or that
even if it includes foreign companies, it
does not affect this transaction first,
because the proviso in Section Twenty
of the same act exempts existing con-
tracts from the act, and, second, for the
reason that the state could pass no law
that would impair the obligation of ex-
listing contracts. Plaintiff further con
tends that the whole transaction was
wagering contract for the reason that
Mrs. Johnston having no insurable in.
terest in the life of Belknap, and having
J agreed to pay the assessments, she is in
the position of one who takes out a pol
icy on the life of another without hav-
ing a pecuniary or insurable interest in
that life. AS to this contention the
: court is of the opinion that the relation
of debtor and creditor existed between
the parties. The notes were in escrow
and were not to be delivered until the
proceeds of the policy were paid to Mrs.
] Johnston The contract Exhibit E,)
was drawn when an absolute assign
/ ment was contemplated, and when 1T
was thought that such a transaction
would be lawful. This contract was
! never performed by Belknap, and his
# ask this court to enforce 1t against Mrs.
/, Johnston in respect to matters which by
: common consent, and by contract in
writing, they had abandoned.
: Exhibit e. was not the contract be
d tween the parties in 80 far as an abso
!, lutte assignment of the certificate is con
cerned. The undisputed facts show that
Mrs. Johnston was creditor and that
9 l3elknap applied for the change of ben
e eficiary. In the opinion of the court the
n transaction was not wagering contract
L 1t is claimed, however, by learned cOun
n sell for plaintiff that Mrs. Johnston hav.
q ing failed to pay the assessments on the
"a certificates, the contract was forfeited
"a AS to this contention the court Is of the
opinion that if the agreement to pay as
~ sessments related to certificate 60.5l4
q Belknap had the right to waive it. Al
the debt was not cancelled it was to his
interests to keep the certificate in force
The fact is that he either waived that
part of the alleged contract, for he paid
n all the assessment himself and tool
d pains to notify the holder of the evi
ne 81, nc ha foot ond dir
~ not avail himself of his rights under thu
s. contract to again designate another ben
8. eficiary, as he might have done had Mrs
ia Johnston forfeited her contract ]; or he
treated that part of the contract (Exhib
it e. as having been mutually aban
10 doned. The court is OF the opinion tina
4, the parties unintentionally utilized thu
8, draft of the contract drawn by the at
# torney und copied by Mr.. Haeberle
j. without making it conform to the chang
ed conditions which the abandonment
of an assignment made necessary
re However that is, Mr.. Belknap's conduc
precludes the idea that he had made 81
absolute assignment, or that Mrs. John
q ston's situation was anything differen
from that of creditor whom it was hi
9 interest to protect by way of security
# Another contention of plaintiff is tina
q the designation of Mrs. Johnston 81
l. beneficiary was obtained by fraud ant
l. through undue influence of Mrs. John
is ston by reason of criminal intimacy be
l. tween the parties; that the alleged in
l. debtedness of Belknap to John F. John
n ston and his wife had no other consider
l. alton than the criminal intimac,
70 charged. AS to this claim, the cOur
9 finds that it is not sustained. There Il
,r n1,iIa hnfora hn thof n0ppIf
g warrant the contrary view. Mrs. John
n ston was indiscreet in mailing the let
f ters ETC., introduced in evidence, bu
# when it is remembered that BelknaI
: was anxious to keep his father in igno
1t rance of the amount of his Indebtedness
10 for reasons that must be apparent, Their
Q is little upon which to base even wei
j. founded su:picion against Mrs. John
D. stOn. Ii wOman's character may be 81
10 easily ruined, many women of spotlesi
/, purity would be subjects for successful
j. attack. The court does not believe tha
g plaintiffs counsel would knowingly in
g jure Woman's character by WantOnly
D. asserting the charges referred to, but il
Q cannot agree with them in their views
IS In the opinion of the court there il
nothing in the evidence to warrant them
# and the court believes that its action il
l. refusing to admit in evidence hearsa!
g testimony offered in support Of this con
j. tentiOn must now lie commended by the
l. learned counsel who excepted to suct
IS ruling.
d These views are fully supported by
d the undisputed evidence concerning ths
70 history of the whole transaction. Il
,, clearly appears that Belknap was un
d successful in business. The senior Bel
10 KNAPP had been successful. Johnston
e had devoted his whole active life to thu
it Belknap interest, either as clerk TO
s. Belknap ST., or for the Son, excepting
l. for short time. when he was in part
Is nership with the latter. The son re
Ia peatedly showed his incapacity as bus
is mess man, and was evidently anxious L
Or keep his father in ignorance of the fact
n There is nothing to indicate that tn
q Johnston's lived beyond their means
D. indeed everything shows that they were
l. careful and saving and the result wa