20$
REPORTER I
vol. 53.
WEINFELD v. MUTUAL RESERVE FUND LIFE ASS'N. (Circuit Court, E. D. Tennessee,' S. D. December 3, 1.892.) L1lI'E INSURANCE-CONDITION OF POLICy-'-WHEN BECOMES BINDING.
An applicant for in a mutnal life compally paid the admission fee, and took a receipt thE'refor, which expressly provided that the policy should not go into effect until the application had been accepted and approved. The warranty paragraph in the application provided that the poli(Jyshould not be in force until the actual payment to and acceptance qf ,t4e annual duel\, and the actual delivery of the policY· to the applicant. was not accepted, nOr were the annual dues paid. Hel.d. that no binding contract was created.
InEquity. Bill by Rosa against the Mutual Reserve Fund Life Association. Dismissed. .& Barton, for complajnani ll4c;lpmond, Chambers & Head, fox: defendant. Judge. On the 20thQt Weinfeld .made application fpr, insurance :With the defendant iIl the sum of $3,OO@,for the benefit of his wife, Rosi Weinfeld. He Paid $15 as an admission fee. No policy ever issued,' and he died March 12, 1890, in an in,sane asylum, and the bill is. filed to recover the insurance. Complainant insists tJ;lat by the terms of the receipt for the admission fee the contract formsurance was complete, and was in force, until thee0tnpany should notify the assured that the application had been,;l,'ejected; .and it is insisted that no such notice was given. I do not believe that the Position of complainant's can "be maintained suecessfullyunder this record. The receipt is as follows: "Received of John Weinfeld. of Chattanoog'R, Tennessee, fifteen dollars for the admissioJl fee upon an application to the MutUal Reserve Fund Life Assa('.lation, for a policy of insUrance for $3,000.00, subject to its provisions and constitution or by-laws,. rules, and regulations of the association. It is herHby expressly understood and agreed tbllt, if the application be not approved and accepted by till' officers at the home office of the' association, in the city of New York, it Shall be held that no benefits have eyer been created or acquired under tWs receipt, and the amount paid hereon will be refunded by me on return of this receipt." .
Certainly, language could hardly be used which would more clearly stipulate that the insurance should not go into effect until the application had been accepted and approved by the home office. This receipt refers to the provisions of the application as being a part of the contract, andlet us see what these are. In the warranty paragraph of the application it is stipulated thus: "And ilie applicant further agrees that under no circumstances shall the certificate· 011 policy hereby applied for be in force until the actual· payment to, and acceptance of the' aunual dues ;by,," ·tile associatiqn, and actual delivery of the certificate or policy to the applicant, with a receipt for the payrnent of the first annual dues, signed by the presillent, secretary, or treasurer of the association, during the lifetime and good health of the applicant."
The applieation shows that $3 annually on each $1,000, payable in advance, is to be paid as annual dues, and, in the warranty paragraph referred to, the applicant agrees "to pay dues annually, in advance, at
MOLONY fl. MASSACHUSETTS BEN. ASS'X.
!09
the rate of $3.00 per thousand." The annual dues on $3,000 are '9. It is not claimed that anything was paid except the admission fee of '15, and the annual dues necessary to the life of the policy· were never paid, nor the policy delivered. It was not to be delivered until these dues were paid, and receipted for by the president, secretary, or treasurer of the association. Again, upon the second page of the application, we have these words by the applicant: "Should thisapplication for memberBhip be accepted, I do thereupon constitute and apooint Edward B. Harper my attorney," etc. 'The receipt for admission fees and the application for insurance are parts of the same transaction, and show clearly and distinctly that the application was a mere proposition for insurance, submitted to the homEl office for its action and determination, aild has never been accepted by it. The minds of the parties never met, and no contract Wall made. This view of the case is sustained by the following decisions: Kohen v. Association, 28 Fed. Rep. 705; Misselhorn v. Same, 30 Fed. Rep. 545; Wood v. Insurance Co., 32 N. Y. 619; Baker v. Insurance Co.) 43 N. Y. 284. Bacon?n Societies and Life Insurance (section 272) says: "If the-, application provides that the policy shall not be in force untU it 18 delivered to the applicant, the contract of insurance will not become binding apon the company untU delivered."
See" also, Giddings v. Insurance Co., 102 U. S. 110--112. It Is ordered that the bill be at complainant's cost.
.
:MOLONY v. MASSACHUSETTS BEN. ASS'N et aL
(Circuit Court, E. D. Pennsylvania. November 22, 1892.) DJUNCTION-P:aOCEEDING8 IN STATE COURTS.
Where a bill prays, among other things, for an injunction to stay proeeedings in a state court, nnd the purpose of the suit can only be attained by granting the same. the, bill will bp dismissed, for such an injunction la expressly forbidden by Rev. St. § 720.
In Equity. Suit by Bridget Molony, as administratrix of Michael Molony,deceased, against the Massachusetts Benefit Association and Benjamin F. Fisher, Receiver of ilie Spring Garden National Bank, Bill dismissed. Benjamin Alexander, Frederick J. Geiger, and William W.Porter, for complainant. D. H. Stone, for defendant ,B. F. Fisher. Y. V. Simpson, for defendant Massachusetts Benefit Association. in support DALIJAS, "Circuit Judge. There are 11 reasons of this demurrer; and there are grounds upon whieh, perhaps, the demurrer should be sustained, other than that which, being alone sufficient to require that the bill should be dismissed, will alone be considered. The third prayer of the bill is for an injunction to relItrain proceedings in a suit at law ina court of common pleas of the state of Pennsylvania. There are other prayers; but they,.and the matters upon which they are founded, are necessarIly involved v.53F.no.2-14
wlthitllEJ/ftnftod prayer. It emoodies the main object 'of the suit, which ,is'to 'pravent an adjudielLtkmin the state cdurtprior to the eonelusiotfbttl:ili!' suit in this cou:Mi;' In complainant's brief it is said: "The complainant requires awrit:oHnjunction against both defendants, ihordeI-: to maintain the Status quo until the rights of the parties aredeteJlI1lined, oilly obtainable in equity." As said in Hitchcock V.'GaJ.\"es'tOn, infra, "Without' this, all else is of no account. Any otherremMy wo1l1d be unavailing," Such an injunction is, however, expressly for:bidden by Rev. St.§ v. Carpenter, 91 U. So 256; mteheockv. Galveston,96U. So 341. As the purpose of this suiteow,dbe attained onJ.:y by the doing '6f that by this court which the taw has distinctly' 'provided that it shall not do, the bill is dis· misSed.' , ,
POLLITZ v. J!'ARMERS'LOAN &; TRUST SOU'l'IIERN PAC. CO. et a1. v. POLLITZ. ,
at
{Cii'OuitCourt;S.D. Ne'i\i York,' December 12, ls9Sl.) m
1.iti..¢ao4 .BONDS-TRtl'STEES-Au-rHORITYTO LITIGATION.
The trustees of rallroad mortgage bondholders represent such bondholdllrs,fP a,ay litigation, to the and" purpose of the suit is substantially Ute same. as ,a foreclj)Sure, of the ,mortgage, the fact that the trustE:le is a pitrty defendant instead of plaintitris immaterial, and the bondholders are bound by the decree, although they are 'not parties to the suit. 2.
Iu II. stilt to collect certain railroad bonds according to the terms of the origina,i'mortgage, itappeard that an of the company's. bonds, except plaintiff's, had been surrendered and exchanged pursuant to a reorganization agreement which he refused to accept; that by It judgment of the Unitro , :ll1tcuit court in Oregon the reorganiration had been substantially oonfirmed; that the trustee of the bondholders was a party defendant to the suit, IUld fairly reprE>Sellted the rights of all; that the interests Of 99 per cent. of the bondholdel's demanded the judgment; that the court, b.r its 9ecrE·e,. fully. recognized the rights of the nonconforming bondholders, providing that the company should execute an indemnity bond conditioned fortheparment of the bonds of the dissp-nting holdors, and that plaintifl' Dligpt fe<lQver unde!," the decree all that he was entitied to. A cross bill was filed to compel plaintifl' to surrender his bonds, and receive new bondl:l in lieu thereof, according to the reorganization agreement. Held. that the protected plaintiff's interest; that h!llllust surrender his old bonds, and accept the new ones, as provided for In the agreement; but that he was entitled to the same security afforded the majority bondholders.
,.
8. SAME-RlGH'l;'S OF DISSENTING BONDHOLDER.
The .' <:iross· complainant having taken· the position throughout the suit that complainant could at any time surrender his .bonds and receive new ones in lieu thereof under the Oregon decree, and c.oUDsel in their blief having o:ll'ered to dl;lliver the lieu bonds and cash upon ,such surrender, the Cl."oss cOJiIlplainant was not in a position to insist that complailiant had by misconduct forfeited his right to interest.
In Equity. Bill by Carl Pollitz against the Farmers' Loan & Trust Company, the Oregon & California Railroad Company, the Southern Pacific COmpany, and the Union Trust Company. Cross bill by the Southem Paciftc Company and the Oregon & California Railroad