Daily Kennebec journal., 1908-12-22


sustainable. The plaintiff was acting as
attorney for the executor and heirs or
the Turner estate His purpose i'll maxi
ing the guaranty was to secure time.
"itnout additional expense, in expecta-
tioh that the party primarily liable to pay
'his oept might be able to do So and il
not that the widow would be coerced to
bear her share of this burden In a let
ter from the plaintiff to Mr.. Boutalle.
dated Dec. 20, 1898, disappearing of tho
suggestion of the latter that the costs of
the three suits to be dropped be covered
by the guaranty, he said Il have doubt
as to the validity of the sale and should
nght 1t If necessary before paving any
costs in the three suits or advising the
heirs to pay them. AS a new sale could
De eventually made. if necessary. the
hers, presume, would raise no question
ABOUT the one already made unless an
attempt is made to sustain suits under il .,
In reply Mr.. Boutelle, after expressing
some hesitation said But of course
the interest of my client calls for practi-
cal results far more than anything else:
ana as the bank can well afford to sacri-
nee the small amount of costs on the
three suits for the sake of the Nguaranty
which resulted from them we will let the
agreement stand" This correspondence,
disclosing so clearly the relation and cir
cunstances of the parties under which
the payment of Oct. 1G 1899, must have
been unade and received, together with
the other facts disclosed, leaves no doubt
in our mind that such payment was hut
the fulfillment of the guaranty and en-
|, titled 10 D1ain
be substituted in place of the bank in
respect to its full claim against the Tur-
ner estate with all its rights, remedies
and securities incident thereto.
And we are of opinion that the law
does not imply, in the absence of agree
ment, and nnder the relation and circum-
stances of the parties as disclosed in this
case, warranty to the plaintiff by the
defendant of the correctness and co,se-
quent validity of the steps taken in bro
ceedings to enforce that claim, and es-
pecally in view of the fact that the
plaintiff in connection with his guaranty,
especially notified the bank that he re-
garded such steps as invalid, but ind on
sequentiai since they could eventually be
retaken.
The plaintiff further claims that, whelh-
er the transaction of October 16, 1899. be
regarded as sale or payment with the
right of subrogatiOn, there was 81 mutual
mistake OF fact as to the subject matter
of the contract and that in consequence
the consideration wholly failed
A mistake to entite a party to relief
on account thereof must be material to
the transaction, and affecting it's sub
stance Tho nIainfif ole
was no Judgment existing as mentioned
in the agreement to be assigned. In this
we think he is mistaken. There was a
judgment as described in the agreement
it proved to he erroneous, but not void
1t needed only to be corrected which
could be, and was, done on application to
the court at a small expense
We are therefore also of opinion, under
all the circumstances of this case, that
if the plaintiff in the payment of the
money to the bank, and the bank In re-
ceiving it, were mutually ignorant of the
fact that the judgment had been erro-
neously entered up, and an invalid exc
cution issued thereon, which invalidated
the sale, but which judgment could be
corrected, such mistake was not so mate
rial to the substance of the transaction,
as the parties then regarded it, as is
necessary to be established to support
this action at Law to recover back the
money paid.
1t follows that the judgment of the
court must be that the plaintiffs action
is not maintained.
Judgment for defendant.
Reed. Dec. 22d, 1905.
Penobscot County-Maria l.. Clifford
Admx., vs. The Workmans Benefit AS
sociation Rescript, Bird, J.
,1-Fraternal beneficiary associations
can impose such terms and conditions
upon membership not contrary to law as
it may choose; and members must COM
ply with those terms and conditions in
order to be entitled to the benefits of
membership.
"A rule Of such an association that a
membeF failing to pay an assessment on
or before the last day Of the month in
which the call is dated "shall stand sus-
perded from all rights, benefits and priv
ileges Of this association without further
notice." is valid rule and self execut-
ing.
3-Whereby the rules Of the association
provide that a suspended member to be
reinstated shall within 80 days from his
suspension pay all arrears of assessments,
such payment must be made during the
life of the applicant for reinstatement.
Payment of such arrears after his death
by some other person will not effect the
reinstatement. unless such payment be
accepted by the association with knowl-
edge of the death.
Judgment for defendant
Reed. Dec. 22d 1908