Youngman v. Walter , 1873 Pa. LEXIS 53 ( 1873 )

The opinion of the court was delivered, February 24th 1873, by

Mercur, J.

The alleged error is, that the court entered judgment for want of a sufficient affidavit of defence. The plaintiff claimed upon a note executed by John Youngman, under seal, payable to Jesse M. Walter, guardian of Rosanna,'Margaret and Sarah Jane Walter, for $865.66, being for one-half the sum which said Jesse, as guardian, had received for himself and said Young-man. The obligation was assigned to said Sarah Jane before suit was brought. The original affidavit of defence filed was not drawn with great clearness and precision. Rejecting much irrelevant matter therein contained, we understand the defendant to aver that he and the plaintiff were at the time of the execution of the note, and still are, copartners. That he was induced to sign the note under the representation of the plaintiff that he had received twice that amount of his ward’s money for the use of their said firm ; but now he gives some reasons why he does not believe the firm received the sum alleged. Thus substantially affirming that he was induced to execute the note under a false statement of existing facts, which might establish a partial failure of consideration. He further averred that two-thirds of said note had been paid in cash by.said firm to said plaintiff. In his supplemental affidavit he distinctly avers, that the note was given for more than was due, and that two-thirds of the amount of the note had been paid to the plaintiff by the defendant in cash before the bringing of the suit, and prior to the assignment of the note to the equitable plaintiffs, all of which he expected to be able to prove upon trial. It appears by the certificate of the learned judge that he did not have the supplemental affidavit before him when he directed judgment to be entered. Considering the original affidavit insufficient he ordered j udgment to be entered against the defendant for the full amount of the plaintiff’s claim. In this Ave think the court erred. The rules of court require the affidavit to set forth the nature and character of the defence. The defendant does aver that he has a defence to the whole of the plaintiff’s claim. The nature and character thereof is an absence in part of consideration for the note and an actual payment in cash, of two-thirds of the note. While the extent of the failure of consideration is vague and indefinite, yet the averment of the amount paid upon the note in cash is sufficiently positive and specific if proved to establish a defence against two-thirds of the amount of the claim.

Judgment is reversed, and procedendo awarded.