It seems that during his lifetime Achille Kalinski became a member of section 363 of what is termed the 'Endowment Rank of the Knights of Pythias,' paid his admission fee, and in consideration thereof, and in compliance with a written application made by him, the defendant, the supreme lodge of the order, issued to him a certificate which is in substance a policy of life insurance, wherein it was certified that Kalinski was a member in good standing in the endowment rank, and in consideration of the representations made in his application, which was made a part of the contract, and the payment of the prescribed admission fee, and in consideration of the payment thereafter to said endowment rank of all assessments as required, and 'the full compliance with all the laws governing this rank now in force, or that may hereafter be enacted, and shall be in good standing under said laws,' the sum of $3,000 will be paid, etc., to Eugenie Kalinski, his wife, etc. 'And it is understood and agreed that any violation of the within-mentioned conditions, or the requirements of the laws in force governing this rank, shall render the certificate and all claims null and void, and that the said supreme lodge shall not be liable for the above sum, or any part thereof.' In his application, Kalinski agreed that he would punctually pay all dues and assessments for which he might become liable, and would be governed, 'and this contract shall be controlled, by all the laws, rules, and regulations of the order governing this rank now in force, or that may hereafter be enacted, or submit to the penalties therein contained.' One of the laws and regulations adopted by the board of control was that 'when a member of the endowment rank becomes in arrears to his lodge for an amount equal to one year's dues, he shall forfeit his membership in the section and said rank, and render void his endowment certificate.'
It further appeared that Kalinski was a member of Syracuse Lodge, No. 50, and that the books of said lodge, which were produced in evidence, showed that he was indebted to the lodge on the 31st day of March, 1891, and at the date of his death, May 24, 1891, in the sum of $12.50, for dues owing by him to his said lodge, under a by-law, which said sum was in excess of one year's dues he was required to pay, but that he had not been suspended by his lodge for that reason before his death, under the provisions of section 5 of article 16 of the constitution of the lodge, and section 3 of article 14 of the by-laws, although he had received notice from the proper officer of the lodge to pay the same, and had been told to pay the same before the next meeting of the lodge, but that he died before such meeting without having paid the same.
It further appeared, and was not disputed, that the keeper of the records and seal of Syracuse Lodge, No. 50, had, under section 6 of article 4 of the constitution of the lodge, failed to notify the section of the endowment rank to which Kalinski belonged that he was in arrears, and that the assessments due by Kalinski to the endowment rank were received in ignorance of the fact that he was so in arrears, and had been tendered back after his death, and several months subsequent to the application of his widow for payment of the policy. In this connection the defendant requested the court to charge the jury as follows. 'If you find that Kalinski was in arrears and indebted to his lodge for dues at the date of his death in an amount equal in amount to one year's dues, you must find, as a conclusion from the fact, that he had forfeited his members ip in the endowment rank, and that the plaintiff is not entitled to recover in this suit. And the receipt of assessments by the officers of said endowment rank (which dues, it is admitted, have been tendered back, as hereinbefore set forth) previous thereto, if in ignorance of the fact that he was so in arrears, was not a waiver of said forfeiture.'
But the court refused to give the charge as requested, and, in lieu thereof, charged the jury as follows: