First Nat. Bank v. Stam. file over a year before the case was tried, the plaintiff undertook to amend by alleging a correct description of the note, was prevented by appellant who went to trial on an unverified answer. Much is said in appellant's brief about an exhibit being no part of the petition; that he could not reach the variance by demurrer, and that the only way he could have his rights enforced was by an objection to the offer of the note in evidence. Even where the instrument sued on is filed in compliance with section 1844, Revised Statutes 1909, it becomes no part of the petition (Keator v. Helfenstein Park Realty Co., 231 Mo. 676, 680; 132 S. W. 1114), but it is none the less subject to the inspection of the defendant. If there is such a discrepancy in the note declared on and the one filed as to not justify its being offered in evidence then the instrument sued on is not filed as required by said section 1844. When it is not filed defendant can have the cause dismissed. [Rothwell v. Morgan, 37 Mo. 107.] The second point urged by appellant is ruled against him because the uncontradicted and unchallenged testimony shows that plaintiff purchased the note, was the owner thereof and the payee whose name appeared therein as having indorsed it, was a party defendant who, by his default admitted plaintiff's ownership. A formal indorsement of a note is not, in every case, essential to pass title. [Section 10019, Revised Statutes 1909. Lipscomb v. Talbott, 243 Mo. 1, 31, 147 S. W. 798, and cases there cited. Dawson v. Wombles, 123 Mo. App. 340, 345, 100 S. W. 547.] In support of defendant's third point it is urged that plaintiff should have proven that ten per cent of the amount found to be due on the note was a reasonable attorney's fee. We resolve this point against him. [North Atchison Bank v. Gay, 114 Mo. 203, 210, 21 S. W. 479.] A different rule may be applicable to a note which fixes no amount but provides for a reasonable attorney's fee and it may be that a maker of a Gilmore v. M. B. A. note who agrees to pay a fixed per cent as an attorney's fee should be liable for no more than is reasonable; such questions are not before us. It is our duty to follow the decision of our Supreme Court, and as the Gay case is directly in point here, since the appellant raised no point below as to the reasonableness of the fee and did not complain in his motion for a new trial of the excessiveness of the verdict, it is better that we desist from discussing decisions from other States. The judgment is affirmed. Farrington and Sturgis, J.J., concur. CORDELIA GILMORE, Appellant, v. MODERN BROTHERHOOD OF AMERICA, Respondent. Springfield Court of Appeals, December 12, 1914. 1. PLEADINGS: Insurance: Review of Pleadings. beneficiary on beneficiary certificate of insurance. reviewed. Action by 2. INSURANCE: Fraternal Benefit Societies: License: Certified Copy or Duplicate: Evidence. A duly certified copy or duplicate of its license is prima-facie evidence that the license is a fraternal benefit society. (Laws 1911, p. 290, sec. 16.) And there being no contradictory evidence this is sufficient to bring such licensee within the provisions of the law relating to fraternal beneficiary societies. 3. INSURANCE: Fraternal Benefit Societies: Initiation Prerequisite to Membership. Initiation is a condition precedent to membership in fraternal beneficiary associations. 4. EVIDENCE: Fraternal Benefit Societies: Custom of Local Lodge. Action on beneficiary certificate, the defense being that the certificate was delivered to the insured but that he was never initiated, adopted or admitted as a member as was required by the by-laws as a condition precedent to membership. Evidence was offered of a custom of the local lodge not to exact this condition. There was no error in excluding such evidence where there was no offer to show the number of certificates that Gilmore v. M. B. A. spondent, and offered the certificate sued on, she established a prima-facie case which entitled her to a verdict. Mulroy v. Knights of Honor, 28 Mo. App. 463; Keily v. Knights of Father Matthew, 162 S. W. 682; Forse v. Knights of Honor, 41 Mo. App. 117; Chadwick v. Order Triple Alliance, 56 Mo. App. 474; McComas v. Life Ins. Co., 56 Mo. 573; Rippstein v. Life Ins. Co., 57 Mo. 87; Cauveren v. Ancient Order of Pyramids, 98 Mo. App. 433. (2) The court committed error in permitting a copy of the purported by-laws to be offered in evidence (Rec. Page 82) without proper authentication, and this cause ought to be reversed and remanded with directions to enter judgment for appellant. Thompson v. Royal Neighbors, 154 Mo. App. 121. (3) The court erred in not permitting plaintiff. to prove that it had been the custom of the local lodge to not exact initiation, obligation and adoption into its order before delivering policies to its members as required by section 120 of the by-laws of said order and that such conduct had been permitted on the part of the local lodge to continue for such length of time as to have necessarily been known to the Supreme lodge which was competent on the question of whether or not the defendant by its acts was estopped to deny its liability under the policy sued on herein. Shartle v. M. B. A., 139 Mo. App. 433; Thompson v. Royal Neighbors, 154 Mo. App. 109. (4) Respondent's only defense was failure to initiate, adopt and obligate deceased on the part of the local lodge and in order to assert such defense it had to show by the burden of evidence that it comes within the provisions of the law governing fraternal beneficiary associations, which it wholly failed to do. Thompson v. Royal Neighbors, 154 Mo. App. 109. (5) This cause ought to have gone to the jury, if the court should hold that respondent by proper evidence brought itself within the provisions of law governing fraternal beneficiary associations, but if not then the court should have directed a verdict for Gilmore v. M. B. A. the appellant. Keily v. Knights of Father Matthew, 162 S. W. 682; Thompson v. Royal Neighbors, 154 Mo. 109. Ely, Pankey & Ely and Sparrow and Page for respondent. (1) Respondent showed itself to be a fraternal benefit society, and that Gilmore had never been initiated. He never, therefore, became a member of the society. Without membership, there could be no contract of insurance with him. Hiatt v. Fraternal Home, 99 Mo. App. 105; Loyd v. M. W. A., 113 Mo. App. 19; Shartle v. M. B. A., 139 Mo. App. 433; Porter v. Loyal Americans of the Rep., 180 Mo. App. 538, 167 S. W. 578; Driscall v. M. B. A., 77 Neb. 282, 109 N. W. 158; Loudon v. M. B. A. (Minn.), 119 N. W. 425; Matkin v. Sup. Lodge, 82 Tex. 301, 18 S. W. 306; Harrison v. Sup. Council, 129 Ia. 303, 105 N. W. 580; Loyal Legion v. Richardson, 76 Neb. 562, 107 N. W. 795; Bacon on Benefit Societies, 3 Ed., Par. 273-A; Brittenham v. W. O. W., 167 S. W. 587. (2) The evidence was uncontroverted. No question as to the credibility of the witnesses was raised. It was, therefore, the duty of the court to declare the evidence of the testimony as a matter of law. Gee v. Drug Co., 105 Mo. App. 27, 34; Carter-Montgomerie v. Steel, 83 Mo. App. 211, at 215; Hendley v. Globe Refinery Co., 106 Mo. App. 20, at 27; Powell v. Railway Co., 76 Mo. 80, at 83. (3) The judgment is manifestly for the right party. This being true, it should be affirmed, regardless of any error, if any there was, committed by the trial court. Cass v. Bank of Harrisonville, 157 Mo. 133, at 137; Foster v. Railroad, 112 Mo. App. 67; Walker Bros. v. Railroad, 68 Mo. App. 465, at 483; State ex rel. v. Smith, 141 Mo. 1, at 9; Albert Grocery Co. v. Grossman, 100 Mo. App. 338; State ex rel. v. Jones, 131 Mo. 194. |