208 Pa. 368 | Pa. | 1904
Opinion by
The error here alleged is the entry, by the court below, of judgment for want of a sufficient affidavit of defense.
It is averred by the defendant, who is the maker, that-the plaintiff, who is the indorsee, is not the real holder or owner of the notes in suit, and that he has no valid title to them, but that the Lebanon National Bank is the real holder and owner. And in a supplemental affidavit of defense he alleges that he has a good defense as against the bank, by way of a set-off in damages arising out of a breach of contract collateral to the notes in suit.
If the defendant had gone no further than the averments of the first affidavit he would probably have come within the principle of the case just cited. But when we take into consideration the supplemental affidavit, we find that the defendant has averred positively that the plaintiff is not the bona fide holder of the notes, but was merely an accommodation indorser, without loss by reason thereof. That the real owner is the Lebanon National Bank, against which a good defense is averred consisting of a set-off for breach of contract, in a collateral matter. Under the decisions in Halfpenny v. Bell, 82 Pa. 128, Devlin v. Burns, 147 Pa. 168, and Weixel v. Lennox, 179 Pa. 457, the defendant is entitled to set off against a claim by the bank, the damages arising from the breach of a collateral contract by it, if, as is averred, it be the owner of the notes.
For the present purpose we must accept the allegations of the affidavits as true. It may be that upon the trial the evidence will fall short of establishing the contention of the defendant. But that question will have to be determined when the proof has been submitted. All that we now decide is that the affidavits of defense are sufficient to prevent a summary judgment, and carry the case to a jury.
Judgment reversed and a procedendo awarded.