Hall v. Wisconsin Life Insurance ( 1925 )

Rosenberry, J.

There can be no question but that upon the facts the plaintiff is, as a matter of law, entitled to judgment against the defendant in the amount found by the trial court. Smith v. Northwestern Nat. L. Ins. Co. 123 Wis. 586, 102 N. W. 57.

On behalf of the defendant it is contended that under the authority of the case of United Order of Foresters v. Miller, 178 Wis. 299, 190 N. W. 197, the defendant is entitled to equitable relief apportioning the funds in the hands of the defendant on the basis of the premiums paid by the plaintiff and other policy-holders. The rights of the plaintiff under his contract of insurance had fully matured as between him and the defendant company, and as between them nothing remained to be done except for the defendant to perform the contract according to its terms. No parties are before this court except the policy-holder and the company. The issues considered in United Order of Foresters v. Miller, supra, do not arise under the pleadings in this case. Inability to pay is not a defense to an action on contract.

By the Court. — Judgment affirmed.