84 Pa. 373 | Pa. | 1877
delivered the opinion of the court,
In consideration of the policy of insurance issued to the plaintiffs below, they promised to pay, Avithin sixty days after notice, on demand, such assessments as might be required to pay losses by fire and expenses. In April 1871 an assessment, knoAvn as No. 5, Avas duly made and notice thereof given to them, but they neglected to
Several of the numerous assignments of error relate to the admission of testimony, introduced for the purpose of showing that the insured were excused in the non-payment of the assessment, and others relate to the sufficiency or legal effect of the evidence; and it is claimed that there was error in refusing to instruct the jury that there was no sufficient evidence to excuse the nonpayment. It is unnecessary to consider the assignments in detail. If the evidence was insufficient, the jury should have been so instructed, in accordance with the points to that effect submitted by the counsel to the company.
The consideration for the insurance was that the defendants in error would pay, within the time stipulated, their share of the losses sustained by their fellow members. The mutuality of the contract required them to perform their part before they could demand performance by the company. 'While they were in default in the payment of their assessments they had no standing to demand payment of their own loss. This principle lies at the very bottom of the relation existing between such associations and their individual members. By the express terms of the contract the company had the right to cancel the policy, and thus terminate the contract relation, upon giving notice to the insured; but it is not claimed that this was done. Without any action on the part of the company, however, the neglect to pay the assessment had the effect of suspending the protection of the policy until the default was removed. Upon the payment of the assessment the policy would .have revived in its full vigor; but it was never paid or even tendered until after the fire; and as delinquent policy holders they had no right to maintain the action without showing that the default was either waived or excused by the company. There is no evidence of waiver, nor do we think there is any evidence to excuse the default. There was considerable testimony showing that great indulgence was extended to delinquent
Judgment reversed and a venire facias de novo awarded.