Kilpatrick v. Home B. & L. Ass'n , 119 Pa. 30 ( 1888 )

Opinion,

Mr. Justice Sterrett:

While the facts intended to constitute an affidavit of defence need not be presented according to any prescribed form, they must be so distinctly stated that the nature and character of the defence will clearly appear. In passing upon the sufficiency of such affidavits, every material and unequivocal averment of fact must be accepted as verity.

Applying these principles to the affidavits in question, we think they present, with sufficient clearness and precision, facts which prima facie constitute a good defence as to that portion of the mortgaged premises which is owned by the terre tenant, plaintiff in error. In substance the averments are, "that, after the mortgage in suit was executed and delivered by the then owner of both houses and lots to the Home Building and Loan Association, plaintiff below, Troth, the mortgagor, on June 5, 1885, for the consideration of $2,200, sold one of the lots to Kilpatrick, one of the defendants below, clear of all incumbrances ; that when the deed was delivered, Troth, Kilpatrick, and George Beeby, agent of the latter, met at the office of the association, and were then and there informed by Patrick Bradley, its secretary, that the payment of $1,880.20 was required to obtain a release of the association’s claim against the lot Troth was about conveying to Kilpatrick, and thereupon the latter directed Beeby, in whose hands he had placed $1,500 for the purpose, to pay Bradley said sum of $1,380.20, in full for the association’s claim against the lot in question. Bradley, instead of receiving the money, directed Beeby to pay it to W. B,. Bliss, the solicitor of the association, which was done on the following day by giving him his check on the Chester National Bank, where he then had, and until August 1st following continued to have on deposit, money applicable to the payment of the.check; that, instead of presenting the check within a reasonable time, Bliss held it until September, after Beeby had misappropriated the money and become insolvent; that by reason of Bliss’s negligence in not presenting the check within a reasonable time, and the continued insolvency of the drawer, the money was lost without any fault of Kilpatrick, the terre tenant, who believed the check had been duly presented and paid.

If these facts, all of which are substantially averred in the affidavits, were proved to the satisfaction of a jury, they would be fully warranted in finding for plaintiff in error. In taking a conveyance of the lot, it was his business to ascertain the amount of the mortgage incumbrance thereon and provide for its payment. For that purpose he went to the proper person, the secretary and executive officer of the association, who was authorized to furnish the desired information, receive money due and payable on the mortgage, etc. If Bradley himself had received the money, it would undoubtedly have been $ good payment and discharge of the association’s lien on the 'lot in question; and payment, or what under the circumstances is tantamount thereto, by his direction to Bliss, the accredited solicitor and agent of the association, is equally effective. Beeby’s check on The Chester National Bank was o£fer$j|,and accepted in lieu of the money, and if it had been presetted within a reasonable time, the money it represented would Bkve been received. It was the duty of Bliss to either turn over the check to the secretary of the association or draw the money and pay it over without unnecessary delay. By reason of his neglect to do either, the money was lost, without any fault of the plaintiff in error. As between him and the association the latter should bear the loss thus occasioned by the negligence of its own accredited attorney and agent.

It cannot, of course, be claimed that the receipt of Beeby’s check was per se payment of the association’s claim. It is well settled that, in the absence of an agreement to the contrary, a check or promissory note, of either the debtor or a third person, received for a debt, is merely conditional payment, that is, satisfaction of the debt, if and when paid; but the acceptance of such check or note implies an undertaking of due diligence in presenting it for payment, etc., and if the party from whom it is received sustains loss by want of such diligence, it will be held to operate as actual payment: 2 Pars, on Bills, 154; Freeholders v. Thomas et al., 5 C. E. Green, 39; McIntyre v. Kennedy, 29 Pa. 448, 455. It is on that principle alone that Beeby’s check, delivered at the instance and for the benefit of Kilpatrick, can be regarded as a payment of the claim held by the association.

The averments contained in the affidavits of defence are quite sufficient to send the case to a jury.

Judgment reversed, and a procedendo awarded.