
    Frederici v. Pa. Mutual Fire Ins. Co.
    In an action on a promissory note given to a mutual fire insurance company to secure assessments, an affidavit of defence is insufficient which alleges that the application has not been attached to the policy, as required by the'Act of May 11,1881. Such suit is within the Affidavit law of 1887.
    Feb. 20, 1889.
    Error, No. 83, Jan. T. 1889, to O. P. Schuylkill Co., to review a judgment in favor of the plaintiff for want of a sufficient affidavit of defence, in an appeal from a justice of the peace, at March T. 1888, No. 417. Sterrett and Mitchell, JJ., absent.
    The facts appear, by the opinion of the court, as follows, by G-reen, J.:
    “ This is a suit brought to recover assessments due the company, and for the payment of which the defendant gave his promissory note ■ in the sum of $140, payable ‘ in such portions and at such times as the directors of said company may, agreeably to their charter, by-laws, and the laws of the state, require, with interest from date at the rate of six per cent, per annum, payable yearly in advance. The annual interest thus paid shall be received in place of and in full for assessments for which notes not bearing interest are liable.’ This was the condition of the note. Suit having been brought upon the note, the defendant interposes a technical defense based upon the Act of Assembly of May 11,1881, P. L. 20. He alleges that the policy ‘ purports to have been issued with a special reference to an application made by the defendant, which application shall form part of the policy; that no copy of said application is attached to said policy as required by the Act of May 11, 1881, and that therefore the plaintiff has no legal right to assess the defendant for any losses sustained, nor compel any payment under and by virtue of said policy.’ But this is a non-sequitur. It does not follow because the application is not attached to the policy that no assessments can be recovered. The only penalty prescribed for the failure to attach the application is that it shall not then be received in evidence and shall not be considered a part of the policy or contract between such parties. The policy might and would still be received in evidence if suit were brought upon it, and it would not be sufficient to allege a failure to attach the application as a defense to an action on the policy; much less would it be a defense when suit is brought, not upon the policy, but upon the promissory note given to secure the payment of the assessments. It is evident that the defendant’s technical defence will not avail him.
    “ The purpose of the Act of May 11, 1881, evidently was to protect the policyholder against representations, statements, and warranties that might be contained in an application (and which application he had usually but little or no opportunity of examining, and was generally hastily prepared and written out by the agent of the company), unless the application or a copy of it was attached to the policy, thus affording the holder full opportunity of examining it, and giving him full notice of its contents.
    
      “ But tbe defendant in the present case is neither within the spirit, nor the letter of the Act of Assembly. The suit before the justice does not raise any question in which the application becomes relevant, and the affidavit of defense does not set forth anything against the legality of the assessment. The authorities cited by the defendant, Imperial Fire Insurance Co., 117 Pa. 46.0, and New Era Life Association v. Musser, 12 Cent. R. 477, do not reach the point of the case; they only affirm the legality of the Act of Assembly, and that the application cannot be given in evidence when not attached to the policy.
    “ The defendant has also added to his affidavit that he is not now nor was he indebted to the said plaintiff in any amount at the time of the bringing of this suit. But this is entirely too general and indefinite. He does not set forth why he is not indebted. The affidavit does not show the nature and character of his defense.
    
      “ The new rules of court, § 91, show that cases of this character come within the affidavit of defense law. The rule in this case must be made absolute.”
    
      The assignment of error specified the action of the court in making absolute the rule for judgment for want of a sufficient affidavit of defence and entering judgment.
    
      N. Heblich for plaintiff in error.
    The application which contains the note and the policy, are one entire contract, and whenever suit is brought to recover for assessments levied, the plaintiff in the court below could not separate the note from the application for the reason that it would destroy the application, and therefore could not offer the note in evidence as a separate and distinct contract from the application.
    Such a destruction of the application by cutting off the note upon which the defendant in error appears to claim the right to recover assessments would be a fraud upon the insured and the effect thereof would be to destroy wholly the provisions of the Act of May 11, 1881. See Brown v. Schock, 77 Pa. 471.
    If, in a trial before a jury, the application could not be received in evidence, as this court has decided in Imperial Fire Insurance Co. v. Dunham, 117 Pa. 460, and New Era Life Association v. Musser, 120 Pa. 384, for the purpose of collecting assessments made and levied by the insurance companies, would defeat the company’s right to recover, then, for the same reason, if the affidavit of defense sets forth that the plaintiff below has not complied with the requirements of the Act of Assembly in eases brought to recover assessments, such an affidavit would be sufficient to prevent the plaintiff’s right to recover.
    
      G. W. Ryon, not heard, for defendant in error.
    The company did not make assessments for losses sustained under the policy issued to plaintiff in error. Nor are they trying to compel any payment under and by virtue of said policy.
    
      The defense really is that as the policy made the application a part of the contract, and not having a copy of the application attached, the whole contract was void — the note as well as the policy and application. The cases cited in the argument of plaintiff in error decide just the contrary.
    Brown v. Schock, 11 Pa. 471, has no application. The premium note is a promise to pay and on that the case of the plaintiff below was complete, having, filed with the pleadings the proof of the assessments having been duly made, as provided for by § 56 of the Act of May 1, 1816. Purd. 918, pi. 13.
    The plaintiff in error argues that the premium note is a part of the application. There is no necessary connection between them. Each paper is complete in itself and the objects of each is entirely different. The application is for the policy. The note is for the payment of the risk in carrying the policy.
    Feb. 20, 1889.
   Per Curiam,

Judgment affirmed.  