Batzle v. Trumbower

Per Curiam,

The summons in this case was served December 12, 1901, and judgment entered December 28, 1901, for want of an affidavit of defense, no appearance having been entered by the defendant. The plaintiff’s claim, as set forth in the statement, is based upon an agreement in and by which the use plaintiff and the defendant, who were husband and wife, agreed to live separate and apart during the balance of their natural lives, the consideration of the agreement being the differences which existed between them “ and in further consideration of certain household property of said party of the first part of the value of three hundred dollars, now formally and actually delivered to said party of the second part.”

The judgment was for $300. There is no allegation in the statement that there was any demand for the goods and, inasmuch as the agreement does not provide for the payment of money, the liability to pay in money would only have arisen when a demand for the goods had been refused. There is no denial in the statement of the truth of the fact recited in the agreement that the goods were “ now formally and actually delivered to the said party of the second fpart.” There is simply the general denial that-“the defendant, though frequently requested, has never paid the consideration money of $300, mentioned in said agreement, either in goods or money, or any part thereof.” As will be seen from the quotation from the agreement, however, there was no promise to pay $300. The consideration was certain household property of the said party of the first part of the value of $300.

The statement can hardly be considered one which entitled the plaintiff to a judgment in money but, without this, we think the court exercised its discretion, both judicially and judiciously, in opening the judgment. The defendant. presents a case which entitled him to have the judgment opened. He testifies to his being misled by the declarations of the use plaintiff who was the party to be beneficially interested by the judgment. She does not make specific denial of the conversation which the defendant details but alleges that, in pursuance of their conversation, she and her husband resumed their" marital relations, which was part of the agreement, as she recounts it, for the discontinuance of the suit; and certainly, with these marital relations restored, she was not entitled to anything under the agreement, at least so long as those relations continued.

The admitted facts, corroborative of the defendant’s testimony, were, in our judgment, sufficient to warrant the exercise of the court’s discretion in opening the judgment. The order of the court making absolute the rule to open the judgment is, therefore, affirmed.