Appeal, No. 239 | Pa. | May 22, 1893
Opinion by
The defendant made and delivered to plaintiff through their general agent, E. G. Kemble, a promissory note, of which this is a copy:
“$371.70.
Philadelphia, Pa., February 27, 1892.
“Four months after date I promise to pay to the order of Michigan Mutual Life Insurance Company Three Hundred and Seventy-one 70-100 Dollars, at 119 South Fourth Street, value received with interest at the rate of par cent per annum.
“ Richard B. Williams.”
The note was not paid at maturity, and plaintiffs brought this suit, claiming judgment for amount of note with interest. To this claim defendant filed an affidavit of defence, denying that he was indebted to plaintiff in any greater sum than seventy per cent of the amount of the note.
Plaintiff took a rule for judgment for want of a sufficient affidavit of defence, which, on November the 5th, 1892, after hearing, the court discharged; from that decree comes this appeal.
The affidavit of defence avers that the note was given for the first annual premium on an insurance policy on his, defend
It will be noticed that this suit is between the original parties to the note; the affidavit, of course, would be insufficient to maintain a defence against a third party, a holder for value. But whatever agreement was made by plaintiff’s agent, Kemble, when he solicited the risk, took the note payable to plaintiff, and delivered the policy, must be treated as made by the company itself, so far as is disclosed by the record at this stage of the proceedings. Further, on an appeal from this decree, we must take the affidavit of defence as stating the exact truth. The parties then are in this attitude: Says the plaintiff, “ True, I positively promised and agreed with you when you delivered me this note for $371.70 that I would rebate from that amount, or credit at its maturity, with $111.51, and on this promise you took a policy from me of $10,000 on your life. But this agreement was not in writing, and as it contradicts the note I will not stand to it; you must pay the full amount.”
Whatever may be the attitude of plaintiff in morals, the question now is, whether it is good in law and equity.
The plaintiff is a mutual life insurance company; presumably, its policy holders share its profits ; the defendant does not aver he was not to pay the face of the note, but that at maturity he would be entitled to a rebate of 30 per cent; the inference is, that the company meant by such a promise that if he lived until theA maturity of the note, as a member of the company or policy holder in it, they would credit him with that percentage on his annual premium ; if he died within the four months, the full amount of the note would be taken from the face of the policy; there would be no deduction. Such an agreement between the parties does not contradict the writing, We have the right to assume from the promise made by plaintiff that 30 per cent rebate would be allowed; they meant defendant would be honestly entitled to receive this sum on his
The case relied on by counsel for appellant, Zeigler v. McFarland, 147 Pa. 607" court="Pa." date_filed="1892-03-21" href="https://app.midpage.ai/document/ziegler-v-mcfarland-6240626?utm_source=webapp" opinion_id="6240626">147 Pa. 607, is not in point. The defence there was, that the note was given on the representation of plaintiff that it was a mere matter of form, and not an obligation to pay the money specified in it. That was a direct contradiction of the instrument, and if enforced made it worthless. Here there is no contradiction, but only the claim of a credit which, by the parol contract, was to be given at maturity. This case ought to go to a jury. The decree affirmed, and appeal dismissed at costs of appellant.