Mantua Hall & Market Co. v. Brooks

163 Pa. 40 | Pa. | 1894

Opinion by

Mb.. Justice McCollum,

The Mantua Hall and Market Company entered into a contract with John Brooks on the 8th of February, 1892, in which he agreed within ninety days from the date thereof to pay off' and cancel $25,000 of bonds secured by a mortgage on property which the company conveyed to him, “and have said mortgage satisfied of record.” He also agreed therein to indemnify the company and the stockholders thereof, against “ all claims and demands of the holders of said bonds and mortgage.” He did not pay off and cancel the bonds and have the mortgage satisfied, nor indemnify the company and its stockholders against the claims and demands of the holders of its bonds and mortgage. In consequence of his default, the trustees named in the mortgage brought suit upon it and recovered a judgment against the company on which the property covered by the mortgage was sold. A further consequence of his default was that a holder of $10,000 of the bonds brought suit thereon and.obtained a judgment against the company on which it was compelled to pay $2,299.68. This action was then brought to recover the money so paid, together with the reasonable expenses incurred in defending the suit upon the mortgage and the suit upon the bonds. In the statement of claim, the contract, the breaches of it and the loss resulting therefrom, were clearly and concisely set forth. A11 affidavit of defence was filed which was adjudged insufficient, and judgment was entei’ed for the amount of the claim.

The contention of the appellant is twofold. It is (1) that the contract is executory and therefore, in an action for a breach of it, an affidavit of defence is not required, and (2) if an affidavit is deemed necessary he filed a sufficient one. The first contention is not sound. Prior to the act of 1887 in relation to procedure it was held that executory agreements were within the affidavit of defence law: Vulcanite Paving Co. v. City of Philadelphia, 115 Pa. 288, and cases cited therein. In Barr v. McGary et al., 131 Pa. 401, our brother Williams, speaking for this court, said:, “The act of 1887 was intended to shorten the road to judgment or issue by requiring the plaintiff, in all forms of action ex contractu, to state his cause of action, and the amounts which he believes to be due him, in a clear and concise form, and permitting him to move for judgment, unless the defendant shall, with like clearness and definiteness, state the nature and character of his defence under oath.”

The Market Company, in the case at bar, complied with the act of 1887 by filing a clear, precise and specific statement of its claim. It was therefore entitled to judgment for the amount of the claim unless the defendant filed a definite answer to it. Did he file such an answer? We think not. In his affidavit of defence there was no denial of any material averment of fact made by the company. As he did not deny, he must be considered as admitting, that the contract, the breaches of it and the consequences of his default were correctly set forth in the statement. On the same principle he must be considered as admitting that the company notified him of the suits brought against it and requested him to defend them, and further, that the expenses it incurred in defending them, on his failure to intervene, were reasonable. These admissions appear to cover the entire ground on which the company based its claim, and to justif3r the judgment entered in the court below.

We are unable to discover anj1- defence to this action, arising from or founded upon the agreement of December 15, 1891. By that agreement George W. Hancock on behalf of certain bondholders undertook to deliver the bonds mentioned therein to the defendant and J. M. Pullinger on their paying to him “ 75 per cent of the par value and interest thereon, on or before the 2nd day of January, 1892.” It is not pretended that the defendant or his associate ever paid or tendered to Hancock or any bondholder represented by him 75 per cent of the par value of one of the twentj'-five bonds which the defendant claims were included in the agreement.

The allegation that the owners of the bonds and the owners of the stock of the Market Company “ are practically the same ” and that the judgments against the company were obtained through collusion between them, is too indefinite and vague to require special consideration. It is clearly not a sufficient answer to the compan3r’s claim.

The specifications of error are overruled and the judgment is affirmed.