Chambers v. Pelican Mutual Life Insurance

Opinion by

Head, J.,

We agree with the learned court below that this record presents no proper case for the entry of a summary judgment. The instrument sued on does not purport to be an absolute unqualified obligation to pay a definite sum of money on a specified date. It is a certificate declaring that the plaintiff has been enrolled as a member of a certain class in the defendant company and has subscribed to its guarantee fund in the sum of $1,000, which will be returnable in cash, etc., subject to the followiiig terms and conditions, inter alia, “All subscriptions to the guarantee fund are returnable in the order of subscription from the guarantee fund only.” The certificate accepted by the plaintiff, which is the foundation of this suit, further declared that the liability of the company under it was to be subject, inter alia, to the provisions of sec. 24 of the statute of Pennsylvania, approved May 1, 1876, P. L. 53.

The affidavit of defense sufficiently avers that the charter powers of the defendant company are regulated by the act of November 19, 1902. On the face of the record then, accepting as verity the averments of the affidavit as to the status of the guarantee fund, a defense has been made out sufficient to prevent the entry of a summary judgment. As the case must be tried in the ordinary course, we refrain from further comment at this time.

The appeal is dismissed at the costs of the appellant, without prejudice, however, etc.