170 A. 398 | Pa. Super. Ct. | 1933
Argued December 15, 1933. This is an appeal from the order of the court discharging the rule for judgment for want of a sufficient affidavit of defense. The plaintiff seeks to recover from the defendant the sum of $125 by virtue of a written agreement providing for such payment each month during the period of her life. The consideration for the payment is the wife's relinquishing her right title and interest in certain personal property.
The defendant alleges that this consideration is mentioned merely to lend color to the agreement and that the real consideration was an arrangement between the plaintiff and the defendant by which she was to obtain a divorce from the defendant on the ground of cruel and barbarous treatment and the defendant would make no defense thereto; that the divorce would be obtained upon false and fabricated testimony; that she never had any title to the personal property which on the face of the agreement was to be the consideration for the payment of the sum each month.
Judge ROSEN, who wrote the opinion for the lower court, refers to the case of Kuhn v. Buhl,
We continue to quote from the opinion of Judge ROSEN:
"The affidavit of defense attacks the contract as *310 being offensive to law and violative of public policy. The whole transaction should therefore be inquired into, which can only be done by submission of the case to a jury."
Commenting upon the authorities cited on behalf of the appellant, Judge ROSEN draws a distinction between them and the present case as follows: "In Irvin v. Irvin,
The order of the lower court refusing judgment is affirmed. *311