Musser v. Stauffer ( 1896 )

Opinion by

Mr. Justice McCollum,

The question presented by this appeal is whether the affidavits interposed as a defense to the plaintiff’s claim are sufficient to prevent judgment upon it. In deciding the question, we, like the learned court below, are limited to a consideration of the averments in the statement of claim and in the affidavits filed in answer to it. Matters of fact which are not included in these cannot be appealed to in aid of the contention of either party. Testimony for or against a motion or rule for judgment for want of a sufficient affidavit of defense is not admissible. “ On the hearing of a rule for judgment for want of a sufficient affidavit of defense the court may not go outside of the case as presented by the claim and affidavit to consider extraneous facts either in support of or against the fine of defense disclosed:” Allegheny City v. McCaffery, 131 Pa. 137. With this familiar principle in view we must consider and dispose of the question raised by the appeal in the case before us.

The laws of another state of the Union are to be proved as those of a foreign country: Ripple v. Ripple, 1 Rawle, 386; The law of another state will be presumed to be the same as that of the forum, in the absence of evidence to the contrary: Bennett v. Cadwell, 70 Pa. 253, and Van Auken v. Dunning, 81 Pa. 464. There is nothing in the claim or the affidavits we are considering which affects this presumption, and it therefore logically follows that the party who asserts that matters which constitute a valid defense to the action under the laws of Pennsylvania are not available as a defense to it under the laws of Virginia must sustain his assertion by evidence adjudged to be competent. The time and place for the introduction of such evidence in a case like the one before us is on the trial of it. As we have already seen no extraneous facts or evidence of them can be considered on a motion or rule for judgment for want of a sufficient affidavit of defense.

The notes and agreement on which the plaintiff’s claim is based were made in Virginia and the parties to them are the parties to the suit. The defendant admits that he executed the notes and entered into the agreement as claimed, but says in substance that he did so on the faith of a contemporaneous parol agreement with the plaintiff, the performance of which by the latter was a condition precedent to the payment of the notes, and the nonperformance of which relieved the defendant from all liability upon them. This agreement appears in the affidavits of defense together with the averments of the defendant that he was induced by it to sign the notes, and that the plaintiff has failed to perform it. We think these affidavits fully justified the learned court below in discharging the rule for judgment.

Judgment affirmed.