Plaintiff was beneficiary in a membership certificate issued by defendant on the life of her husband. After his death she brought this action in the district court for Douglas county, and from a judgment in her favor for the amount of such certificate defendant appeals.
At the close of the trial each party moved for a directed verdict. Under such circumstances the finding of the court takes the place of a verdict of the jury, and should not be set aside unless upon the whole record it appears to be clearly wrong.
The principal contention of the defendant is that decedent was not eligible to membership, and that bis membership certificate was procured by fraud and is therefore void. Under the constitution and rules of the order a saloon-keeper or bartender was not eligible to membership. In the application the decedent stated that his occupation was a “can maker.” The evidence is clear that this answer was knowingly and wilfully false, and that at the time of giving this answer and signing the application the applicant was a saloon-keeper, or a bartender in a saloon. In stating his occupation, in his medical examination, there is written “sal.” These letters were crossed out and the words “can maker” written in. A sister of the decedent was at the time secretary of the local *430lodge. She testified that she noticed the change in occupation in the medical examiner’s certificate, and shows that she understood why the change was made. She wras asked: “Q, You knew when you read that, knowing that he was a bartender, that somebody had started to write ‘saloon’ and had crossed it out? A. I saw they started to write something; I don’t know what, doctor started to do that; I didn’t, haven’t I been telling you that I knew the business he was in? I didn’t notice particularly what they started to write in, saloon or saloon,-keeper, I expected the doctor made a mistake, he knew him well, and was going to tell the truth; I expected he started to write something else; I knew it would not do to tell that.” She also testified that' after her brother’s death she had a conversation with Mr. Bradley (one of the attorneys for defendant), “in which he asked me whether or not my brother, the deceased James Krecek, had been engaged as a bartender prior to the time that he joined the defendant order, and in which I told him .that he hadn’t been a bartender and had never been anything, but was a can maker until after he joined the order. My purpose was to conceal the real facts.” In the light of this testimony, showing the part taken by decedent’s sister, who was secretary of the local •lodge and the one who forwarded the application to the supreme officers, and considering the fact that, as she says, the doctor knew the decedent well, “and was going to tell the truth” until he was stopped either by the decedent or his sister, secretary of the lodge, the fraud attempted to be perpetrated upon the society is most glaring.
It is too evident for serious thought to the contrary that the examining physician started to give decendent’s true occupation of saloon-keeper; that after writing the first three letters it either dawned upon him or was suggested by the applicant that if that occupation were given he could not be admitted as a member of the order, and so the change was made. It is claimed that the medical examiner was the agent of the supreme lodge. This contention is not sound. He was not appointed examiner by the supreme lodge, but was selected by the local lodge, of which *431applicant’s sister was secretary. He was not even a beneficial member of tbe order, but had been admitted simply as a “social” member, evidently, as stated by counsel for defendant, for the purpose of securing the business of the local lodge. The sister of decedent did not continue in the office of secretary of the local lodge until the time of Krecek’s death, and the secretary who succeeded her probably did not know that he was engaged in a prohibited occupation. His assessments were regularly paid into the local lodge for several years thereafter, and forwarded to the supreme lodge. There is no evidence to show that during any of the time that Krecek held his certificate of membership in the society any officer of the supreme lodge had the slightest knowledge or notice of the fact that Krecek was engaged in an occupation prohibited by the constitution of the order. Under the circumstances it would be a travesty upon justice to compel the members of the order generally to be assessed to pay the death claim on a membership gained through such fraud and deceit. The fact that some of the members of the local lodge knew of his occupation does not change the matter. They were not the persons charged with any official dxxty in relation thereto.
The language of Barnes, J., in Wilhelm v. Order of Columbian Knights, 149 Wis. 585, 588, is very appropriate to this case: “We have here a case where the agent of the defendant, and the insured and the beneficiary, his wife, entered into a conspiracy to defraud the defendant by securing a policy of insurance by means of false representar tions, a policy which they knew could not be obtained if the truth were disclosed. If we were without precedent for our guidance, we would have little inclination to make the court the fourth member of that conspiracy by assisting in the consummation of the fraud, but we are not. This case comes squarely within the decision in Hanf v. Northwestern Masonic Aid Ass’n, 76 Wis. 450, and it would be superfluous to say anything more about this branch of it.” If we were to substitute the doctor and decedent’s sister for the beneficiary in the case at bar, we *432would have an exact parallel with the Wisconsin case. The fact that the wife of decedent is not shown to have participated in the fraud by which he obtained his certificate of membership is immaterial. ‘Whether she then participated in the fraud or not, she is now attempting to avail herself of the benefits of that fraud. All of the parties who participated in the fraud were responsible for its results, and certainly neither the insured nor any one claiming under him should be allowed to say that the defendant must be presumed to know the facts which they had succeeded in keeping from the knowledge of its supreme officers, and that defendant has waived the objection to his occupation because of a constructive knowledge of facts which by the very conduct of the conspirators it was prevented from actually acquiring.
But, it is said that for about ten years after the decedent’s sister ceased to be secretary of the local lodge Krecek regularly paid his assessments, which were received and forwarded to defendant; that during that time there were various secretaries and other officers of the local lodge who did not participate in the fraud, but who knew of the disqualification of the insured, and who received the money from time to time and forwarded it; and that, under numerous decisions of this court, defendant cannot now assert the fraud practiced upon it in gaining admission to membership as a defense to this action. But none of the authorities cited sustains such a contention. They are all cases where, at the time of becoming a member, the applicant was eligible to membership, but by reason of some act of his after gaining admission his right to remain a member became forfeited; as in Modern Woodmen of America v. Colman, 64 Neb. 162, and, on rehearing, 68 Neb. 660; also, Pringle v. Modern Woodmen of America, 76 Neb. 384, and, on rehearing, 388. In those cases it is held that a subordinate lodge of a mutual benefit society and its clerk or secretary, who is designated by the supreme lodge to receive and forward dues and assessments, are agents of the supreme lodge, and that the collection of dues and assessments from a member of the order by *433the clerk of the subordinate lodge, with full knowledge of any forfeiture of the member’s right to continue his membership, amounts to a waiver of the forfeiture. We have no disposition to recede from the rule announced in those cases, but they rest upon a radically different foundation from the case at bar. In the case we are considering, Krecek could not, under the constitution of the society, become a member of the order. The membership of this society having determined as a mutual organization, and so declared in the constitution of the society, that saloon-keepers and bartenders are ineligible to membership, on any terms, the power to admit them to membership, or to ratify their membership when illegally admitted, did not exist in either the supreme officers of the society or in any local lodge thereof. It follows, therefore, that the local lodge could not admit the decedent to membership, nor could the supreme officers of the society ratify its act in so doing, nor could they continue him in membership, for the reason that any attempt to do so was prohibited by the constitution, over which they had no control, and not by any mere by-law which they had enacted. When the constitution of one of these societies provides in unmistakable terms that a person engaged in a certain business cannot become a member of the society, and that if, after becoming a member, he enters upon such prohibited occupation, the doing so “shall ipso facto forfeit all rights as a member of this order,” and that hiS' certificate shall thereby become absolutely null and void without any action on the part of his local or supreme-lodge, and that the payment by him of any dues and assessments thereafter shall not have the effect of waiving such forfeiture or reinstating such certificate-holder to any rights, benefits or privileges as a member, the society cannot be made liable by estoppel or waiver, for the reason that he could not be admitted to membership, or permitted to remain a member, by the most solemn affirmative action on the part of either the supreme officers or the local lodge of the society. The .rule is well settled that no *434one can gain anything by estoppel or waiver that he could not have gained by affirmative action or contract.
The defendant by its answer concedes the right of the plaintiff to recover the amount of the assessments paid into the society by the decedent during his lifetime. These amounts, together with interest, are all that plaintiff is entitled to recover. The judgment of the district court is therefore reversed and the cause remanded, with directions to ascertain the amounts paid in by the decedent in his lifetime as assessments upon his certificate of membership, and to render judgment therefor in favor of plaintiff, together with interest on the sums so paid, from the dates when such payments were made to the time of the original trial of this action in that court, defendant to recover its costs since the filing of its answer in the court below.
Reversed.