Gere v. Unger

125 Pa. 644 | Pa. | 1889

Opinion,

Mu. Justice Mitchell:

The original and supplemental affidavits of defence set up a clear case of fraud in the procuring of the note upon which the suit is brought. The particulars of the fraud are given, and it is also averred upon information and belief that the note was passed to the plaintiffs by Miller, the active agent in committing the fraud. It is well settled that this establishes a good defence against any but a bona fide holder for value before maturity, and is sufficient to put the plaintiff upon proof of his right as such holder.

This result would be beyond possibility of question in the present case, were it not that the supplemental affidavit states that Miller delivered the note to plaintiffs “ in payment and satisfaction of an old debt.” This raises the only doubt in the case. Taken literally it makes out no defence, and under the former affidavit of defence law, which required the filing only of a cojiy of the note, and supplied by intendment therefrom all the necessary legal requisites to the cause of action, would not have been sufficient to prevent judgment. But the procedure act of 1887 requires not only a copy of the writing but a statement of his case, to be filed by the plaintiff, and if we examine the statement we find that it avers only that “said Beilhartz (the payee) by delivery transferred the same to plaintiffs.” The peculiar language of this statement, not “paid,” or “sold,” or any similar word, but “by delivery transferred,” and the entire absence of date of transfer, or averment of value or consideration, passing from the plaintiffs to Beilhartz or Miller, deprive the statement of sufficient weight as a clear case for the plaintiffs, to entitle them to a summary judgment. Moreover the distinction between taking a note as absolute, or as only conditional payment and satisfaction of an old debt, is so narrow, and depends so entirely on the exact facts, that the defendant should not be deprived of his right to have the facts fully developed upon a trial, unless the plaintiff has in his statement made out at least such a prima facie case as would meet the defence set up by the affidavit.

For these reasons we are of opinion the court was right in. discharging the rule for judgment, and remitting the parties to a full development of the case before a jury.

Order affirmed.