Sterling v. Lodge. called obligation is quite apart from the contention counsel make. That is to say, while the applicant was not required to be formally initiated or instructed in the secret work of the protection degree or of the order, nevertheless he was required to take the obligation that he will guard the interests of the camp, and pay all dues and legal assessments; that he has not been rejected by or expelled from any camp of the order; and that he is in sound bodily health. And unless this obligation is taken, under the laws and rules of the society, when all its provisions are considered, the applicant cannot be said to have become a member. It can readily be seen that the exaction of these obligations or promises is just as requisite from such suspended member applying for membership as from a person who has not been a member. Considerable evidence was introduced, showing that the general practice of the order was that such suspended member applying for membership was in every case obligated. There was no evidence showing the contrary, or any evidence to show that such suspended member was ever permitted to renew his membership without being again obligated. But even though it could be said that the deceased was not required to be re-obligated, and that his membership was renewed without it, yet there is much force to the contention that at the time of his death he was not a member in good standing, under the rules and regulations of the society, because of his default in not paying the dues and assessments required of him to be paid thereafter, and for the three months preceding his death. The evidence shows he did not bring himself within the provisions heretofore quoted, whereby he was exempt from these payments on account of illness. Nor do we think the evidence sufficient to show a 10 tender of money as by law required to constitute a good tender in payment of the amounts due, and as a condition precedent to the delivery of the certificate. The only tender claimed was that of August 6th, the evidence of which has heretofore been set forth. We Sterling v. Lodge. think this falls short of a good tender. Hunt on Tender, sections 234, 419, 471; Englanders v. Rogers, 41 Cal. 420. The contention of the respondent that a better tender was excused, because of the clerk's testimony, in effect, that a good tender alone would not have authorized him to deliver the certificate, and that 11 he would not have done so until the applicant was obligated and until the certificate was properly signed by the consul commander, and that therefore the applicant was not required to do a mere vain thing, might have force, were that the only condition precedent to give effect to the contract of insurance. For the reasons above expressed, we think the court erred in his instructions, and erred in not directing a verdict for appellant. The judgment of the court below is therefore reversed and vacated, and the cause remanded for a new trial in accordance with the views herein stated. Appellant is given its costs on appeal. MCCARTY, J., concurs. BARTCH, C. J. (dissenting).-Upon a careful examination of the record herein, I am unable to agree with the majority in reversing this case. According to this ruling, a local agent, by neglecting or refusing, through design or otherwise, to perform a mere ministerial act, can defeat and render void a contract entered into by his principal, although his principal and the other contracting party have agreed upon its terms, and have done and offered to do, in good faith, everything necessary for them to do to make it valid and operative. This is not a case where a member, of his own volition, permanently leaves the order, and for that reason refuses to pay his dues and live up to the constitution and rules of the fraternity, but one where the member, in good standing, and holding a valid certificate, upon becoming married, was anxious to simply change his beneficiary, and substitute his wife, so that, in case of his death, she, to whom, in the very nature of things, he was more closely bound than to anything else upon Sterling v. Lodge. earth, might have something for her maintenance when he could not longer contribute to her support. All the while it was clearly his intention to continue his fellowship with the lodge, which was well understood by the officers thereof; and with that intention, as appears from the evidence and the record, he sought from the clerk of his camp-the agent of the defendant-the course to be pursued to effect the change as to the beneficiary, and followed the course which the agent devised. Then having entered into another contract with the defendant pursuant to such advice, this same agent, according to this decision, was able to, and did, defeat and render void not only the original contract, but also the new one in which the change was to be effected by simply refusing to obtain the performance of a mere ministerial act by an officer of the lodge, who, as appears from his statements in evidence, would have countersigned the certificate if it had been presented to him. The whole transaction, on the part of the deceased was but an effort in good faith to provide for his wife; and the party with whom he was contracting, and who mislead him, now succeeds in defeating the provision intended for the object of his affection. His failure, under the circumstances, to take the oath which he had previously taken, ought not to be held, under section 110 of the constitution of the order, to have been a condition precedent to his right to receive the new certificate. The transaction in question had not relieved him from his previous obligation. In conscience he was still bound; and that the oath was a part of the ritual of the protection degree to me seems clear. The exception of section 110 therefore relieved him from again taking the obligation. To my mind, the ruling herein savors neither of justice nor fair dealing. Nor do I regard it as in accordance with the principles of law and equity applicable to such a case. That this judgment will work a miscarriage of justice-the very thing which is the foundation of law-I have no doubt. If such a contract, Sterling v. Lodge. made under such circumstances as are disclosed by this record, can be defeated by mere technicalities, what assurance can any member of the lodge have that after he is dead his beneficiary will receive the intended bounty? Surely the result of this case is not in accord with the benevolent object of the order. For these and other reasons suggested by the record and briefs of counsel, I dissent. RETTA STERLING, Respondent, v. THE HEAD CAMP, PACIFIC JURISDICTION, WOODMEN OF THE WORLD, a Corporation, Appellant. No. 1548. (80 Pac. 1110.) On Petition for Rehearing. Denied.* 1. Beneficial Associations: Change of Beneficiary. Where the contract between a beneficial association and member provided for a change of the beneficiary by a surrender of the certificate and the issuance of a new one, the motives or reasons which induced the member to attempt to change the beneficiary by permitting his membership to lapse, as a preliminary to taking out a new certificate, instead of following the provisions of the contract, were immaterial on the right of the contemplated beneficiary to recover the insurance money.1 2. Same: Tender: What Sufficient. Where the constitution, rules, and regulations of a beneficial association required the officer who collected assessments to give official receipts for all money received, and keep stubs of each receipt given by him, and to attest benefit certificates and other official documents, and further required certificates to be signed by another officer before delivery to the member, and the collecting officer kept an office known to the members, where he transacted the business of the order, a tender of dues and assessments *For former opinion, see 28 Utah 505, 80 Pac. 375. 1Snowden v. Pleasant Valley Coal Co., 16 Utah 366, 52 Pac. 599; Stoll v. Daly Min. Co., 19 Utah 271, 57 Pac. 295; Linden v. Anchor Min. Co., 20 Utah 134, 58 Pac. 355. Sterling v. Lodge. clerk on a and demand of a certificate, made on the 3. Same: Contracts: Construction. Where a contract consists of several different instruments, each document will be read and construed with reference to the others, and the contract will, if possible, be given effect as a whole. BARTCH, C. J., dissenting. (Decided May 24, 1905.) MCCARTY, J.-The respondent in this case has filed an elaborate and exhaustive petition for a rehearing, in which it is urged with much energy and zeal that the conclusions arrived at in the opinion written by Mr. Justice Straup in this case are not supported by the facts and the law applicable thereto, and are therefore erroneous. In view of some of the statements made and deductions drawn by counsel in their petition, we deem it proper to make some further observations respecting the facts in the case upon which plaintiff's alleged right to recover depends. Mr. Justice Straup having made an extended statement of the facts in the opinion written by him, it will not be necessary for us to restate them here. It is admitted that John C. Sterling, the deceased, first became a member of defendant order, camp 53, in October, 1899. A benefit certificate was duly issued to him, and he paid the regular dues and assessments and continued in good standing up to and including the 31st day of December, 1900, on which date, because of his failure to keep up and pay his dues and assessments, |