Emmeluth v. . H.B. Association , 122 N.Y. 130 ( 1890 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] It appears from the complaint that ten persons, designated as members of Five Thousand Club "I," limited to ten, each procured a certificate of insurance from the defendant. While this is not expressly alleged, it necessarily follows from the allegations that the club was limited to ten members, each with a certificate in force, and the withdrawal of two thereof "leaving eight members of said Five Thousand Club `I' entitled to receive their share of said $5,000." One of the certificates is specifically set forth, and another generally, and from the former, issued to Daniel Sandford, it appears that an annual premium and such assessments as should be made were payable by him to the defendant, and that upon his death there was payable from the defendant to him or his representative, and to the other members of the club, the sum of $5,000, "share and share alike." According to the contract Mr. Sandford was empowered to designate a beneficiary to receive the one-tenth or such other fractional part as otherwise would be payable to him. Whether he did this or not is unimportant in this action which relates simply to the share of the plaintiff, but some confusion is produced by the allegation in the complaint that the defendant, by its contract with Sandford, promised to pay the amount of the policy, when due, to the sister of said Sandford, and to the plaintiff and the other members of the club. The contract, however, which is set forth in hæc verba, does not mention the sister, and the complaint can conform to the contract in this regard only upon the theory that he had designated her as his beneficiary. Whether he has or not does not affect the plaintiff, as in either event his fractional part would be the same. The certificate issued to the plaintiff, so far as it is set forth, is like that issued to Mr. Sandford, and presumptively the certificates of the other members of the club were the same, as it distinctly appears that membership depended upon a certificate in force. The form of those certificates, however, is not here important, because it appears from the certificates of the plaintiff and Mr. Sandford that the interest of each of those persons was several, as it was founded on a separate consideration and an independent contract, and the promise, as alleged, was to pay to the members or their designated beneficiaries share and share alike. The action follows the nature of the interest, and when that is several, separate actions may be maintained, even if the language of the promise is joint. (Hess v. Nellis, 1 T. C. 118; Van Wart v. Price, 14 Abb. Pr. 4, note; Warner v. Ross, 9 Abb. [N.C.] 385; Shaw v. Sherwood, Cro. Eliz. 729; Eccleston v.Clipsham, 1 Saund. 153; Withers v. Moore, 3 B. C. 254; 1 Addison on Cont. 79; 1 Pars. on Cont. 11.)

The words "share and share alike" are words of severance and create a several right, especially when considered in the light of the fact that the consideration was several. As the language of the promise is not expressly joint, but, to say the least, may be construed to be joint or several, it should, according to the authorities cited, be held several, because the interest of the promisees is several.

The action to recover the share of the plaintiff was, therefore, properly brought in his name alone.

Some confusion is also created by the allegation that the certificate of the plaintiff is for the benefit of his wife, but that is only in case of his death, and this action is not founded upon the certificate issued to the plaintiff, but upon that issued to Mr. Sandford. The only importance of setting forth the former at all is to show that the plaintiff is a member of the club. There is clearly a cause of action alleged.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.