Appeal, 12 | Pa. | Jan 18, 1933
Argued January 18, 1933. Plaintiff school district appeals from refusal by the court below of judgment for want of a sufficient affidavit of defense in its action of assumpsit against defendant surety company on a bond to secure the school district's deposit of $35,000 in the Commercial Trust Company of Harrisburg, which company, it is averred in the statement of claim, having closed its doors and been taken over, on October 15, 1931, by the state secretary of banking, defaulted in repayment of funds so deposited.
The bond in suit provided for termination of the obligation by the surety after five days' notice to the obligee or its representative. Defendant avers it gave such notice of cancellation in a letter addressed to the "city treasurer and or collector of city taxes of the City of Harrisburg" under date of September 30, 1931, and also that notice of such action was received by the secretary of the board of school directors on the same date, as indicated in a letter from the board's secretary to John C. Orr, agent for defendant bonding company. Plaintiff contends the notice in question did not refer to the bond in suit, and, as a further defense, avers Orr, as agent for *282 defendant, orally, on or about October 8, 1931, reaffirmed and continued the bonding contract. Defendant contests both these statements, further alleging that up to and including October 5, 1931, no default in payment had been made by the trust company.
This brief and incomplete review of the pleadings is sufficient to make it evident the case is not "clear and free from doubt" and that the court below correctly decided that questions of fact were raised which required submission of the case to a jury: Elliott v. McGoun,
The order refusing summary judgment is affirmed.