Thropp v. Susq. Mut. F. Ins.

Opinion, Mr. Justice Mitchell : The principal question of law raised in the present case was upon the validity of the assessments made by the defendant in error. The case was tried before the publication of the opinion of this court in Insurance Company v. Gackenbach, 115 Pa. 492, and the rulings of the learned judge below were at variance with the decision in that case. On an examination, however, of a correct copy of the by-law under which the assessments were made, it has appeared clearly that this court, speaking through our late brother Teunkey, was misled by an incorrect copy in the record of that case, and the mistake has been rectified in the opinion in Susquehanna M. F. Insurance Company v. Stauffer, filed herewith. [See ante p. 416.] The main contention in the present case having been thus settled, the others can be disposed of without difficulty. The first assignment of error is to the refusal to permit the [441] defendant to ask the secretary what salary he received in the year 1877. It is sufficient to say that the relevancy of the question was not apparent from any evidence then in the case, nor was any offer made to follow the question with such evidence. The ground assigned here was not pointed out to the judge at the trial, nor is the evidence shown to us which would support it. The evidence is that the assessments were made for losses only, and whether the secretary or directors improperly received compensation for their services, though important to the policy holders as members of the association, was not relevant to the issue on trial. Several of the assignments relate to the variance between the amounts of the assessments as stated in the notices to the defendant, and the amounts, as proved at the trial. The instruction by the learned judge below, that an error in the amount arising from miscalculation, would not prevent the plaintiff from recovering the amount really due, was entirely correct. Mere errors of statement of amounts do not destroy the true claim. Other assignments raise the question whether the refusal of the Court of Common Pleas of Dauphin county to allow the company to set off or defalk its claims for interest on defendant’s deposit-note, and the assessments then due, was an adjudication which barred these items in the present action. It is difficult to see why it should do so. It was not an adjudication of the right of action on the assessments, but of the company’s right to use them in payment of a particular judgment. Set-off against a judgment is not of right, but of grace, and is only-granted where a special equity is shown to justify it. What reasons moved the Dauphin county court in its refusal, we do not know, nor is it material that we should. It is sufficient that the adjudication was not upon the claims as a cause of action. Susquehanna Ins. Co.’s App., 105 Pa. 615, is not contrary to this view, as in that case the court simply distributed a fund paid in for the very purpose. Even if it had gone further, and decided that under the circumstances equity would allow the set-off against a judgment, it would not now follow that the refusal of the Dauphin county court to allow the set-off in this case, was an adjudication of the right of action. In the very case in 105 Pa. it was held that even a previous action [442] for the assessments, and judgment against the company therein, were not a bar to the company’s claim on the assessments, inasmuch as it was shown that the failure of the plaintiff was for want of notice of the assessments given to the defendant in the action. The only remaining question is, whether the destruction of the buildings by fire and the subsequent sale of the land, terminated plaintiff in error’s liability to further assessments. It may be conceded, that ordinarily and in the absence of a special contract, this result would follow, as held in Wilson v. Insurance Co., 19 Pa. 372, but it is quite clear that the law of this case is otherwise. The contract stipulated for the payment of the assessments that should be made for all losses during the term of the policy, without regard to the destruction of the property, or other hardships. There was a provision for surrender of the policy in case of sale of the land, but no surrender was made under it. In the language of our brother Green, in 105 Pa. 624, “whatever may be said in reference to the reasonable or unreasonable character of a contract with such provisions, it is enough for the purposes of this case to know that the contract of these parties is of this character.....If parties make such contracts they must be bound by them.” The case was well tried by the learned president of the Common Pleas, and the questions arising in it properly ruled. The Judgment is affirmed.