Louchheim v. Maguire , 186 Pa. 311 ( 1898 )

Opinion by

Mr. Justice McCollum,

J. H. Louchheim & Co. are the payees named in the note in suit, and the defendants are the makers of it. The payees indorsed and delivered it to the plaintiff who has not alleged in the statement of his claim that he received it before maturity, or that he is the owner of it. The defendants, however, have averred in their affidavit of defense that they are informed, and that they believe and expect to be able to prove that he is not a bona fide purchaser of it for value before maturity, and that he now holds it for collection and in the interest of the parties to whom they delivered it. If, therefore, their affidavit contains a good defense to the note in the hands of the payees the judgment entered by the court below must be reversed.

The note was given for work done and materials furnished under a contract between J. H. Louchheim & Co. and the defendants, and in which J. IL Louchheim & Co. agreed, inter alia, “tofurnish all materials, labor and tools required for the laying and putting down of the cement pavements, yards and alleys, curb and coping in the erection of one hundred and fifty-six houses then in course of erection on Poplar and Wyalusing streets, between Thirty-eighth and Thirty-ninth streets, inclusive, in the city of Philadelphia,” and “to lay the vitrified brick on said streets in accordance with city specifications and under city supervision.” In and by the terms of said contract the said Louchheim & Co. also guaranteed all work done and materials furnished by them under it, for a period of five years from the completion of the work, against all defects whether in work or materials, and they also agreed, on notice in writing from the defendants or their authorized agent, “ to repair said work and keep it in good order and condition for said period of five years, reasonable wear and tear excepted.”

The defendants aver in their affidavit of defense that the work done by Louchheim & Co. was not in accordance with the contract, and they specify the location, nature and causes of the delects in it. They further aver that one of the consequences of the imperfect work done by Louchheim & Co. is a condition of the pavements “ making it dangerous for pedestrians to pass over them.” They further aver that they notified Louchheim & Co. of those defects on July 2, 1897, and requested them to repair the same, at once, and that Louchheim & Co. disregarded the notice and neglected to make the repairs. It is further averred by the defendants that by reason of the defects in the work and the failure or refusal of Louchheim & Co to make the repairs as agreed they “ have been compelled to pay out and will be in the future compelled to pay out, a large sum of money to repair the same and place it in proper order and condition, a much larger sum of money than that for which this suit is brought.” It seems to us that the averments in the affidavit of defense are sufficient to prevent judgment. They are clear, direct and positive, and none of them can be justly condemned as evasive or ambiguous. They fairly present a defense to the note, and the defendants should be allowed an opportunity to establish them by competent evidence.

Judgment reversed and procedendo awarded.