Union Type Foundry v. Kittanning Ins., No. 130

No. 130 | Pa. | Nov 3, 1890

OPINION,

Mr. Chief Justice Paxson :

The plaintiff was thrown out of court on the merest technicality. It claims to have been incorporated in June, 1884, under the laws of the state of Illinois, and has been doing business since that time in the city of Chicago. On May 7, 1887, it procured a policy of insurance from the defendant company on its property, for the term of one year. This policy was issued to the “ Union Type Foundry,” that being the plaintiff’s corporate name. The premium money was paid by a check drawn in the name of the “ Union Type Foundry,” payable to the Kittanning Insurance Company. A fire occurred in January, 1888, by which the property insured was destroyed. In all the correspondence and intercourse between the plaintiff and the insurance company, in consequence of the fire, the plaintiff was known only as the “ Union Type Foundry.” The defendant failing to make good the loss, a suit was finally commenced against it in the name of the “ Union Type Foundry.” To this suit the defendant put in an affidavit, alleging as the only ground of defence that it had not been furnished with such proofs of loss as the terms of the policy required. Defendant pleaded non-assumpsit, payment, payment with leave, and the facts contained in the affidavit of defence. While the pleadings were in this condition, the case was arbitrated, with an award in favor of plaintiff. The defendant appealed, the case was twice upon the trial list, and twice continued. Finally it came to trial; and, after a jury had been called into the box, the defendant for the first time raised the question of the plaintiff’s right to sue by filing a plea in abatement. The plea was not even sworn to as required by rule 40, § 13, of the court below. We are of opinion that it came too late: Murphy v. Chase, 103 Pa. 260. After recognizing plaintiff’s character during all these transactions, and by its own pleadings filed, it came with an exceeding ill grace to spring such a plea upon the trial, when the inability of the plaintiff to make the formal proof of its charter, on the instant, might be fairly presumed, and was probably understood by the company. We think it will take no risk in drawing its check for the amount of the loss to the order of the “ Union Tjqie Foundry,” to which it issued its policy.

The first, second, and seventh assignments of error are sustained. The remaining assignments are not important in our view of the case.

The judgment is reversed and a venire facias de novo awarded.