119 Pa. 30 | Pa. | 1888
Opinion,
While the facts intended to constitute an affidavit of defence need not be presented according to any prescribed form, they must be so distinctly stated that the nature and character of the defence will clearly appear. In passing upon the sufficiency of such affidavits, every material and unequivocal averment of fact must be accepted as verity.
Applying these principles to the affidavits in question, we
If these facts, all of which are substantially averred in the affidavits, were proved to the satisfaction of a jury, they would be fully warranted in finding for plaintiff in error. In taking a conveyance of the lot, it was his business to ascertain the amount of the mortgage incumbrance thereon and provide for its payment. For that purpose he went to the proper person, the secretary and executive officer of the association, who was authorized to furnish the desired information, receive money due and payable on the mortgage, etc. If Bradley himself had
It cannot, of course, be claimed that the receipt of Beeby’s check was per se payment of the association’s claim. It is well settled that, in the absence of an agreement to the contrary, a check or promissory note, of either the debtor or a third person, received for a debt, is merely conditional payment, that is, satisfaction of the debt, if and when paid; but the acceptance of such check or note implies an undertaking of due diligence in presenting it for payment, etc., and if the party from whom it is received sustains loss by want of such diligence, it will be held to operate as actual payment: 2 Pars, on Bills, 154; Freeholders v. Thomas et al., 5 C. E. Green, 39; McIntyre v. Kennedy, 29 Pa. 448, 455. It is on that principle alone that Beeby’s check, delivered at the instance and for the benefit of Kilpatrick, can be regarded as a payment of the claim held by the association.
The averments contained in the affidavits of defence are quite sufficient to send the case to a jury.
Judgment reversed, and a procedendo awarded.