No. 196 | Pa. | Jan 9, 1882
The opinion of the Court was delivered by
The declaration in this ease is somewhat peculiar. It has some of the distinctive features of a narr in case, but it is devoid of essential characteristics of both debt and covenant. After reciting that the company, by an instrument in writing, under seal, called a certificate of membership, insured the life of plaintiff's husband to the extent of $2000, for her benefit, and promised under its seal to pay her that sum upon his death, and averring that he afterwards died, and thereupon the said sum became payable to her, etc., the declaration alleges the breach in the following words: “"Yet the defendant, not regarding its said promise, has hitherto neglected and refused, and still does neglect and refuse to pay the said plaintiff the sum of $2000, or any part thereof, although ofteu requested by the plaintiff so to do, whereby the plaintiff has sustained damage to the amount of $5000, and therefore she brings suit,” etc. If good for anything, this must be regarded as a declaration in assumpsit. The summons was in that form, and the action was so recognized in the pleas and on the tidal, as appears by the bill of exceptions.
The certificate of membership recited in the declaration, unaccompanied by the application therefor, was received in evidence under a general objection and exception. This is the subject of the first assignment of error, in support of which several distinct positions are taken. Inasmuch as the
It is contended in the first place that, in connection with and as part of the certificate, the plaintiff was bound to offer the application for membership, or give a satisfactory reason for nob doing so. The certificate provides that “ if the proposals, answers, declarations, and representations made by the aforesaid member in his application for membership, and which are hereby made a part of this certificate as if fully herein recited, and upon the faith of which this agreement is made, shall be found in any respect untrue, then and in such case, this certificate shall be null and void,” etc. In view of this provision, it was clearly incumbent on the plaintiff to present the application. in connection with the certificate, of which it forms a part, or account for its non-production.
The reason of this has been so clearly pointed out in several cases, that it is unnecessary to add anything to what has been there said: Lycoming Mut. Ins. Co. v. Sailer, 17 P. F. Smith, 108; Same v. Storrs, 10 W. N. C., 304; Farmers and Mechanics’ Mut. Ins. Co. v. Meckes, Ibid., 306. There is nothing upon the record in this case to excuse the non-production of the application. It is also contended that the admission of the contract or certificate of membership, under the corporate seal of the company, was precluded by the form of action adopted. We think this position is also well taken. Where, as in this case, the cause of action arises upon a specialty, or writing under seal, it is well settled that the action must be debt or covenant, as the case may be: McManus v. Cassidy, 16 P. F. Smith, 260, and cases there cited. While the legislature, by statutes of amendment, and the courts, by judicial construction, have gone far to relieve against technical distinctions, which sometimes interfere with the trial of causes on their merits, they have not yet obliterated the boundary lines between the different forms of action as they are defined by the common law. If the contract on which the claim of the plaintiff below is based had been properly in evidence, the instruction complained of in the second assignment of error would have been unobjectionable. There is nothing in the nature of the contract, or in any of its provisions, requiring either notice of death or demand before bringing snit.
The third assignment is destitute of merit. The jurors summoned to serve for the week preceding the trial were in attendance, and from them the jury was duly impanelled and
Judgment reversed, and a venire facias de novo awarded.