Coble v. Zook , 6 Pa. Super. 597 ( 1898 )

Opinion by

Beaver, J.,

If the statement was demurrable, defendant should have demurred to it: Newbold v. Pennock, 154 Pa. 591. Having filed his affidavit of defense, joined issue and gone to trial, he is bound by the evidence of consideration for the agreement, as shown in the testimony at the trial, the same having been received, without objection on his part. The first assignment of error is, therefore, overruled.

The second and third assignments relate to the same question. The record shows that the plaintiff offered in evidence the statement and the affidavit of defense. The object of the offer is not stated; but, having offered them, he is, of course, bound by the issue which .they raised. The affidavit of defense contains a distinct denial of the plaintiff’s claim and sets forth that “ he (defendant) never made any agreement to pay plaintiff two hundred and fifty dollars, as is alleged and set forth in the statement filed, but it is true that he did agree that, in the event of his being able to resell the premises referred to in the statement as having been purchased by him at sheriff’s sale and upon his being able to reimburse himself for all moneys that he had therein, he would then, upon the resale of the said premises by him, at a price sufficient to reimburse himself for all moneys that he had therein and to enable him to pay the said sum of two hundred and fifty dollars as aforesaid, pay to the plaintiff the said sum of two hundred and fifty dollars, and this agreement on his part is the only one he ever entered into with plaintiff to pay him two hundred and fifty dollars; that he is still the owner of said premises, never having been able to sell them; that, whenever he is able to sell them and reimburse himself as aforesaid for all moneys that he has therein invested, he will be ready and willing to pay plaintiff the sum of two hundred and fifty dollars.” In the absence of any evidence of the sale of the premises and of the reimbursement to the defendant of the money which he had invested therein, this affidavit raised a question of fact concerning which it w*as the province of the jury to pass. If they had believed its contents, the plaintiff was not entitled to recover. The credibility of the witnesses of the plaintiff and of the defendant, the latter becoming a witness by the introduction of his affidavit of defense by the plaintiff, was for the jury and should have been submitted for their consideration by the court. There was, therefore, error in affirming the plaintiff’s point, and directing the jury to find for the plaintiff.

The second and third assignments of error are sustained, and • the judgment is reversed and a new venire awarded.