holder of said notes; and so this defendant denies that he is indebted to said plaintiff as alleged in his petition." It is obvious from a reading of this answer that the defendant did not comply with the statute. He says that on the 22d day of April, 1889, the notes referred to in the petition amounted to the sum of $6,523.14. What notes? He must have had in mind some notes which he had executed. Yet because these notes had been detached from the petition long after the suit had been brought and judgment had been rendered, he saw fit to deny that he ever executed any notes which were then attached to the petition. We do not think the plaintiff in error brought himself clearly within the provisions of section 77 of the Code, and the district court committed no error in overruling his application to open up the judgment. We recommend that the order of the court refusing the application be approved.

dren, heirs, and relatives of deceased members, and is a mutual benefit association, issuing benefit certificates or insurance policies upon the lives of its members, payable to the person named therein on the death of the member insured, upon condition that certain dues and assessments are paid as provided in said policies and certificates. The association has a head camp, having supervision over local camps, with power to make assessments upon members to pay benefits upon the death of members whose lives are insured, which assessments are collected through the local camps. The head clerk is the chief recording, corresponding, and financial officer of the fraternity.

"(2) The local camp is the lodge or as sociation formed in each place where it may be organized, and hold meetings and do business, as may be proper under the constitution and by-laws of the order. Each local camp has a local clerk, who is its recording, corresponding, and account

STRANG, C. The plaintiff is a mutual life insurance company, incorporated under the laws of Illinois, and doing business in the state of Kansas. July 24, 1888, said company executed and delivered to S. W. Jameson, husband of the defendant herein, a benefit certificate, by the terms of which it agreed, upon certain conditions, to pay to said Mary J. Jameson the sum of $2,000, upon the death of her said husband, S. W. Jameson. Said S. W. Jameson died September 20, 1888. Suit was begun on said benefit certificate by Mary J. Jameson, the beneficiary therein named, on the 6th day of February, 1889. June 14, 1889, the cause was tried by the court, who made the following findings of fact:

"(1) The defendant is a corporation organized under the laws of Illinois to promote neighborly regard and fraternallove, to bestow substantial benefits upon chil

assessments and reinstate suspended members. The head clerk, among other duties, has the following, as provided by a bylaw of the fraternity in force when the certificate sued on was issued, and ever since. He shall, as soon as he has knowl edge that any neighbor is suspended from any cause, mail to said neighbor a notice, post-paid, to his last-known address, stating that he stands suspended upon the books of the head camp, and also informing him what it is necessary for him to do to become reinstated. The following bylaws were also then and ever since in force governing said fraternity: Section A. Every neighbor shall be notified by the clerk whenever an assessment is necessary to pay benefit to the heirs of deceased neighbor before the 10th day of every calendar month. If he fails to pay same before the first day of the following month, he shall stand suspended, and during such suspension his benefit certificate shall be void. Sec. B. If all arrearages of every kind are paid up within three months, and the clerk is satisfied that his health is not impaired, a neighbor shall thereby be restored to his benefit certificate, made binding so soon as said payment is received and recorded by the clerk. If the clerk has reason to believe that the health of t neighbor is impaired, he shall submit the matter to the camp, who shall decide the matter by a two-thirds vote. Sec. C. Should a neighbor be suspended more than three months, it will be necessary, to restore him to beneficiary membership, to present a certificate of good health from the camp physician, and pay up all arrearages of every kind, and he will be fully restored, and his certificate made binding, as soon as same is received and recorded by the clerk, but thereafter he will be assessed at the rate established for the age he has attained. Sec. D. Should any clerk receive payment of arrearages, and reinstate any neighbor whose health' is at the time impaired, or who has been known to use intoxicants or opiates to such an extent as to become frequently intoxicated, or under the influence of the same, or who has made

false representations in his application to become a member, unless said clerk shall have first submitted the matter to his camp, and been authorized by a twothirds vote of the members present so to do, he shall, upon conviction thereof, after an investigation by his camp, be expelled. To convict a clerk under this section, proof must be produced showing that he had knowledge of the reinstated neighbor's condition, or the falsity of his representations, at the time or prior to his reinstatement. A clerk expelled under this section can never again be admitted as a member of this fraternity. Should a local camp reinstate a member known to be guilty of the offenses mentioned in this section, or should a clerk reinstate such a member, and the local camp fail to expel the clerk or unworthy member, the head consul may, with the concurrence of the head advisor, suspend the camp until it shall perform that duty. The provisions of this section shall also apply to division K of these fundamental laws.' On the 24th day of January, 1888, S. W. Jameson was a member of Fidelity Camp, No. 499; being a local camp of said order at Ottawa, Kan., his residence and postoffice address; and on that day, pursuant to the rules and regular business of the association, the policy or benefit certificate, a copy of which is attached to the petition, was duly issued and delivered by the defendant for the benefit of Mary J. Jameson, wife of said S. W. Jameson. Said Jameson remained in good standing in said order, and paid all assessments made against him prior to the assessment for August, 1858. He paid all dues to December 31, 1888, and until his death was in good standing in said order, except so far as such standing was affected by the nonpayment of said August assessment next herein referred to.

“(3) On August 7, 1888, the local clerk of said Fidelity Camp handed to said S. W. Jameson a written notice of an assessment which had been duly made by the head camp for August, 1888, and which notice was in the following form:

No.

"Be sure to pay this before September 1st. Modern Woodmen of America. six. Neighbor S. W. Jameson: You are herey notified to pay to the local clerk of your camp assessment number six. Total $1.05. If it is not paid before September 1st, 1888, you will stand suspended from participating in all the financial benefits of this fraternity until you become reinstated. No. 115 and 118 are paid. Name. | Camp. [No. | Location.| Age. | Died. | Amrz. ¡ Cas.' "[Here follow names, etc., of members who have died, giving particulars under above heads.]

"Said Jameson did not pay said assessment, and it never has been paid, except as hereinafter stated.

same evening said Fidelity Camp was in session, and the local clerk, among other duties, was receiving assessments. A member of said camp, having heard said report concerning Jameson, hastened to the camp hall, and informed the clerk that said Jameson was dangerously sick, and asked if his assessments were paid. Thereupon said clerk handed to said member the duplicate of notice, which had been given to Jameson on August 7th, and said that it was unpaid, and that he would receive the money. Thereupon said member paid said assessment. The clerk indorsed his receipt upon said notice in the usual way, and handed it to said member, who afterwards gave it to said Mary J. Jameson, who thereupon adopted said payment as her own. The clerk, at the time he received said payment, supposed said Jameson to be dangerously sick, as he was then informed. He was, however, dead, and had been for about 15 minutes, although that fact was unknown to both the member who paid and the clerk who received the dues. At the same time said member paid and the clerk receipted for the September assessment against Jameson, $1.05, due October 1, 1888.

"(5) Said local camp, in the usual course of business, and after knowing of said death, transmitted money so received on assessment against said Jameson to the head camp, which returned the same to the local camp. Said money has never been returned, nor the return thereof offered, either to said Mary Jameson. or to the member who paid it, but is still retained by the defendant; that is to say, it is still held by said local camp.

"(6) Due and proper proofs of death and demand for the benefits named were made and served on the defendant on December 6, 1888, but said defendant refused to make an assessment for or to pay the same, but expressly repudiated said claim, for the reason, as stated, that said Jameson did not comply with the conditions of the certificate or the fundamental laws of the order, and had been suspended several months before he died, of which suspension he had been notified by the head clerk of the fraternity.

“(7) No notice of suspension had been given said Jameson, except as stated in the third finding above.'

And also the following conclusions of law: "(1) That said S. W. Jameson was not at the time of his death suspended from said order, no notice of suspension having been mailed to him as required by the by-laws. (2) The money was paid and received in good faith, in ignorance of Jameson's death, but after full knowledge of all the facts the defendant retained, and still retains, the same, and is thereby estopped from asserting a forfeiture, if forfeiture had occurred. (3) No assessment having been made, and no showing offered of the amount that would be obtained thereby, the defendant is liable for the sum of $2,000, named in said certificate, with interest since December 6, 1888, at the rate of seven per cent. per annum, for which judgment is awarded.

for a new trial, the court entered judgment in favor of Mary J. Jameson, and against the said company, for the sum of $2,073.89. The company brings the case to this court, and claims that the trial court erred in its first and second conclusions of law. The first conclusion of law reached by the trial court is based upon the fact that no notice of the suspension of Jameson was ever mailed to him, as provided in the by-laws of the association. The court finds as a fact, however, that the notice provided for in the by-laws was, in due time, delivered to Jameson in person by the clerk of the association, he being the same person whose duty it was, under the by-laws, to give Jameson notice by mailing the notice to him. The notice, therefore, was a proper notice as to form, it reached the hands of Jameson in due time, and came from the proper person, that is, from the officer of the company, whose duty it was to see that he had the notice. The question arises, then, whether actual notice by delivering the paper constituting it, to the party to be notified, is not as good as a presumptive notice that flows from the act of depositing such notice in the mail, properly stamped and addressed. We think it is, and that the first conclusion of law is therefore erroneous.

We think the second conclusion of law of the trial court is also erroneous. The court concludes, as matter of law, that the money paid September 20, 1888, by the friend of Jameson, was both paid and received in good faith. We do not see how that can be true, for the court finds, as facts, that both the friend who paid the money and the clerk who received it believed, at the time of its payment, that Jameson was dangerously sick. He had defaulted in his August payment. Notice had been given him by the company that, if the payment was not made by September 1st, he would stand suspended, and yet he did not pay. September 20th, about 8 o'clock, the friend learns that Jameson was dangerously sick, and hastens to the lodge-room, where the association is then in session, and tells the clerk that Jameson is dangerously sick, and asks if his assessments are all paid. The clerk, by way of reply, handed him a duplicate copy of the notice that had been given Jameson, which informed him that his assessment for August was $1.05, and that, unless paid by September 1st, he would stand suspended, and also told him that such assessment was not paid. The friend of Jameson then knew, as did the clerk, that Jameson stood suspended, and both knew that, when a member was suspended, he could not be reinstated at a time when he was dangerously sick. The clerk knew by reason of his official position, and the friend by reason of membership in the company. How, then, could the money so paid and received have been either paid or received in good faith? Could the payment and receipt of said money by the parties thereto with the knowledge that Jameson was at the time suspended for non-payment of his August assessment, and had been for 20 days; that he could not be reinstated except up

on the conditions that his health was unimpaired, and that he paid up all assessments and dues within three months; and that they, at least, believed him at the time dangerously sick,-constitute anything less than a fraud, or attempt at fraud, upon the company? It was an attempt to reinstate a suspended member, in violation and in fraud of the provisions of the benefit certificate sued on, and in violation of the by-laws of the order.

The

It is said the money so paid was not returned to the party who paid it, nor to the beneficiary of the certificate. But the head camp, immediately on its receipt, not only refused to receive it, but promptly returned it to the local camp to be paid back. The fact that it was not actually returned by the clerk of the local camp to the friend of Jameson, from whom he received it, is not at all surprising, when the circumstances under which it was received are remembered. The fact that a mere clerk of a local camp, who had received the money in the first place in violation of his duty to his principal, has failed to hand it back to the person paying the same, cannot operate as a refusal by the company to pay the money back, when his superiors in the company have returned it to him to be paid back, especially when considered in connection with the circumstances under which it was paid to and received by him. But, beyond this, there is still a greater obstacle in the way of recovery in this case. As a matter of fact, there was no effort on the part of any one, during the life-time of Jameson, to pay up his assessments and secure his reinstatement. court below finds as a fact, at the time the attempt was made by his friend and the clerk to reinstate him, Jameson was dead, and had been dead for 15 minutes. Could a dead man be reinstated? We think not. The very object of reinstatement, like the issuance of the benefit certificate originally, was to insure against his death. It is said that when Jameson was suspended, September 1st, he had three months in which to pay up and get reinstated, and that, therefore, he had not ceased altogether to be a member of the company. This is not disputed. He was suspended, however, from participation in the bene. fits of the order, unless, within three months, he availed himself of the provis ions of the company, by which he might again be permitted to participate in the benefits of the order without going through the preliminary process of making application for membership. But if a suspended member neglects to invoke the aid of the provisions by which he may return to full fellowship in the company during his life-time, can a friend after his death, by any act of his, have the suspension set aside, and procure his restoration to full fellowship, though attempted within three months from date of suspension? We think not. If still alive, he could only become restored to his membership by showing that his health was not impaired. He could then secure his reinstatement upon mere payment of assessments and dues. But prior death is wholly inconsistent with any idea of restoration to membership. Counsel for the de

fendant in error cites Union v. Whitt, 36 Kan. 760, 14 Pac. Rep. 275, to show that prior death is not inconsistent with reinstatement. We have examined that case. It is not in point. The principle involved is not the same. In the Whitt Case, the membership or initiatory fee was eight dollars. Whitt gave his note for such fee, due August 30, 1884. When the note came due, at his request, the company extended the time for payment until November 1, 1884. On October 26th, Whitt died. October 30th a son of his inclosed the eight dollars to the company. Afterwards notice was given of Whitt's death, and the company answered that Whitt was not a member of the company; that his certificate of membership had been canceled for non-payment of said note. It will be seen that Whitt was not at any time, either before or after his death, in default. He was not, therefore, suspended for non-payment, nor could he be, because his obligation to the company was met when due. There was no question in that case of the reinstatement, after his death, of a member actually suspended during his life-time, for non-payment of assessments. So with the other cases cited. The principles involved therein differ from the questions in this case. We think the judgment in this case should be reversed, and therefore so recommend.

which were used to support electric light wires and lamps, and were connected with the plant and property of the defendant; and the plaintiff asked to have the defendant's property and its appurtenances charged with a lien for the same. The cause was submitted to the court without a_jury, upon the following agreed facts: "It is agreed that the defendant has erected a system of water-works and electric light plant and machinery necessary to operate the same on the real estate described in plaintiff's petition, and has put in the proper machinery for furnishing electric light for the city of Marion, and has a franchise from the city to use the streets of the city for the erecting of polesand stretching electric light wires thereon through the city; and that the defendant erected its poles and stretched its electric wires on the same over different portions of the city. That the plaintiff furnished poles for stretching the wires for the electric light, and that the defendant used the same in the streets of Marion, and stretched its electric wires upon the same, and hung its lamps thereon, and operated and used the same for the purpose of furnishing electric light for different portious of the city. That none of the material furnished by the plaintiff was actually placed upon the grounds mentioned in plaintiff's petition, but that the poles so furnished were all used in the streets of

(48 Kan. 182)

BADGER LUMBER Co. v. MARION WATER
SUPPLY, ELECTRIC LIGHT & POWER Co.
(Supreme Court of Kansas. March 5, 1892.)
MECHANIC'S LIEN-ELECTRIC LIGHT POLES IN
STREET.

An electric light and power company owned land, on which was a building and machinery for generating electricity, and it had a franchise from a city to use its streets for the erection of poles on which to stretch wires and suspend lamps to furnish light for the people of the city. Poles were purchased from plaintiff, planted in the streets of the city, wires and lamps were placed thereon, and all connected by the electric light wires with the machinery and premises of the company. Held, that the poles and wires were an appurtenance of the premises of the company, and that the plaintiff was entitled to a lien upon the same for the poles furnished.

(Syllabus by the Court.)

Error from district court, Marion county; FRANK DOSTER, Judge.

Action by the Badger Lumber Company against the Marion Water Supply, Electric Light & Power Company to recover for certain poles sold, and to enforce a lien therefor. The court awarded a personal judgment against defendant, but refused to enforce a lien. Plaintiff brings error Reversed.

Keller & Dean, for plaintiff in error. King & Kelley and Winslow, McDuffie & Neal, for defendant in error.

JOHNSTON, J. The Badger Lumber Company brought this action to recover $227.50, the value of 70 cedar poles sold by the lumber company to the Marion Water Supply, Electric Light & Power Company,

with the electric light machinery and water-works on defendant's premises by electric light wires used by the defendant for the transmission of electricity from its premises through the city. That the machinery of the electric light and waterworks is all located on the same premises, in the same building, and run by the same engine; but the dynamo for generating electricity, and its machinery, is so constructed and arranged that it can be used separate and apart from the water-works machinery, and that either the waterworks or the electric light plant can be operated separately and independently from each other. And defendant has a franchise from the city to lay mains and pipes in the streets of the city, and is operating said system of water-works, and furnishing the inhabitants of said city with water by means of said system of waterworks." The court awarded plaintiff a personal judgment against the defendant for the amount claimed, but refused to enforce a lien upon the real estate and appurtenances of the defendant, for the reason "that no part of the material for which plaintiff claims a lien was on the real estate of the defendant, or attached thereto in any manner except by the wires stretched from the poles of the defendant's electric light machinery situated on said real estate.'

The sole question presented here is, do the poles and wires attached to the building and premises of the defendant constitute an appurtenance of the same within the meaning of the mechanic's lien law? The statute as it existed prior to 1889, when this cause of action arose, provided that "any mechanic or other person who shall, under contract with the owner of