Codington v. Standard Bank of Canada, 40 App. D.C. 409

Codington v. Standard Bank of Canada

40 App. D.C. 409 | D.C. Cir. | 1913

Mr. Justice Bobb

delivered the opinion of the Court:

As we have many times suggested, the object of the 73d rule is to promote justice by preventing, so far as possible, fictitious defeuses. It was, of course, never intended as a substitute for a trial. If, therefore, the court, upon reading an affidavit of defense, is convinced that it has been made in good faith, and that a doubt exists as to the right of the plaintiff to recover, *412summary judgment ought not to be entered. Lawrence v. Hammond, 4 App. D. C. 467; St. Clair v. Conlon, 12 App. D. C. 161; Patterson v. Barrie, 30 App. D. C. 531; Columbia Laundry Co. v. Ellis, 36 App. D. C. 583. Tested by the foregoing rule, we think the present affidavit clearly sufficient. All facts within the personal knowledge of the defendant are clearly and fully averred. Those facts, as previously suggested, if sustained by proof, constitute a good defense as against the original payee of the note. That the plaintiff bank should have failed to demand interest on this note until recently; that it should have deferred bringing suit thereon for three years; that it should have exacted security of the original payee, are circumstances which, unexplained, tend to support the averment of the defendant that it did not acquire the note without notice of his defenses. The affidavit clearly shows that, as to facts not within the personal knowledge of the defendant, he has made due inquiry; that the result of such inquiry is his belief that he will be able to prove at the trial, by competent witnesses, that the plaintiff, when it acquired the note, had notice of his defenses. Taking the affidavit as a whole, the good faith of defendant is clear, and a doubt is raised as to whether the plaintiff ought to recover.

Judgment reversed, with costs, and cause demanded.