Opinion by
Mr. Chief Justice Sterrett,While it may be conceded, as claimed by defendant, that the plaintiff must be presumed to have known the terms of the charter and by-laws, it by no means follows that the mere existence of unpaid assessments worked a forfeiture of his membership in the insurance company. No duty was imposed on him to inquire, in the first instance, whether or not any assessments had been made. It would only have been after notice had been given by the executive officers whose peculiar function it was to assess and collect, that action on his part would have become imperative. This will appear from even a cursory reading of the charter. It expressly provides, in section 5, that when an assessment shall be made by the board of directors — the secretary shall place a duplicate in the hands of the collector, and, upon the refusal of any member to pay, the treasurer shall bring suit, and if such assessment remain unpaid for the space of ninety days “ after notice thereof,” the policy of insurance or certificate of membership of such delinquent shall be forfeited. The whole burden of initiative is placed on the company officers; and their power to declare a forfeiture of membership is expressly made dependent on default in payment “ after notice.” It is not alleged that any notice was given the plaintiff in this case of assessment against him until after suit brought. That being so, he was not bound to pay or tender payment of assessments of which he was not notified; and was therefore entitled to maintain an action for his loss under the terms of his policy, unless estopped by voluntary relinquishment of his membership, of which there was some evidence to go to the pry.
In his fourth prayer for instructions, plaintiff declares he “ was ever ready and willing to pay any and all claims that might have been made or demanded of him ” by the defendant company, etc. In view of this, it would be but just and equitable — in the event of a recovery — that the sum or sums duly *60assessed against him and remaining unpaid should be first deducted from the amount to which he may appear to be entitled.
The case lies in a very narrow compass and needs no further discussion.
Judgment reversed and a venire facias de novo awarded.