246 Pa. 151 | Pa. | 1914
Opinion by
This is an appeal from a judgment entered for want of a sufficient affidavit of defense. The action was scire facias sur mortgage. It appears from the record that upon October 1,1910, the defendant gave to the plaintiff a mortgage to secure an indebtedness of $3,589.93 as evidenced by a certain promissory note for that amount, made by E. B. Tustin to the order of defendant; by whom it whs endorsed, and at whose request, it was discounted by the plaintiff. The said note was dated October 1, 1910, and was payable one year after date, the mortgage being given to cover any renewal or renewals of the note. The precipe for the scire facias, contained an averment that default had been made in payment of the principal of the note, and of all installments of interest.
In the affidavit of defense, the first averment is failure of consideration, for the mortgage. It is alleged that the mortgage and the note in question were given in settlement of four certain suits, which had been brought by plaintiff against E. B. Tustin and defendant, on prior promissory notes made and endorsed by them, and upon the express agreement that the said four actions would
As a second matter of defense, it is stated in the affidavit, that when the promissory note of E. B. Tustin endorsed by defendant became due and payable on October 1, 1911, no protest or notice of protest was made or given to said defendant, and for this reason he claimed
A third ground of defense averred in the affidavit, is that E. B. Tustin has certain claims of set-off against plaintiff, which amount to more than the sum due on the promissory note, and the collateral mortgage. It would appear that these claims accrued prior to the suits brought upon the original notes, and it would seem that if such a defense existed it would properly and naturally have been taken into account, in the settlement, which was made in the giving of the new note and the collateral mortgage; but at any rate this claim is not one of set-off by defendant in his own right. In order to be allowed as set-off to one another, demands must be in the same right: Tagg v. Bowman, 99 Pa. 376. Aside from this the averment in this respect is not sufficiently definite. Claims of set-off should be averred with the same particularity as is required in statements of claim: Reilly v. White, 234 Pa. 115, (119); Law v. Waldron, 230 Pa. 458 (466).
A further alleged defense which is set up in the affi
In bolding that none of tbe allegations of tbe affidavit of defense are sufficient to prevent judgment, the court below was clearly right.
Tbe assignments of error are all overruled, and tbe judgment is affirmed.