Colbath v. Granite State Mutual Aid Ass'n
Supreme Court of New Hampshire
Assumpsit, by the guardian of two children of Joseph S. Cowan, deceased, upon a certificate of membership issued to Joseph by the defendants, in which they promised to pay “ within sixty days after due proof of” his death “a sum equal to the amount received from one death assessment, but not to exceed $5,000.” The defendants demurred.
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Assumpsit, by the guardian of two children of Joseph S. Cowan, deceased, upon a certificate of membership issued to Joseph by the defendants, in which they promised to pay “ within sixty days after due proof of” his death “a sum equal to the amount received from one death assessment, but not to exceed $5,000.” The defendants demurred. When the plaintiff brought the suit at law, he also filed a bill in equity against the defendants, praying that they be ordered to make an assessment, “ and hold the same, subject to any judgment” the plaintiff might recover in the suit at law. In their answer,…
1Opinion of the CourtDoe, C. J.
The defendants admit that their contract, if binding, may be specifically enforced on the plaintiff’s bill in equity. The question of fraud may properly be tried by jury (Tasker v. Lord, 64 N. H. 279, 283) ; and all questions of fact will be determined, by the jury or by the court, at one trial. When the facts are found, the suit at law may not be needed. The question whether that suit can be maintained with or without an amendment of the declaration, is postponed until its examination appears to be necessary.
Case discharged.
Carpenter, J., did not sit: the others concurred.
2Cases cited1 opinion
- Tasker v. LordSupreme Court of New Hampshire · 1886