120 Pa. 552 | Pa. | 1888
Opinion,
In this case judgment was entered against the defendant for want of a sufficient affidavit of defence, and the question is, whether the plaintiff was entitled to judgment. This question, of course, must depend exclusively upon a consideration of the facts which are set forth in the affidavits of claim and defence. Much of the matter which appears in the paper books, and is there urged in argument to us, does not appear at all in the respective affidavits of the parties, and cannot be considered now, however important it may be on the trial of the case.
The affidavit of defence admits the making of the articles and the payment of the part of the purchase-money claimed by the plaintiff, but denies that the defendant “ failed, refused, and neglected ” to comply with the terms of the agreement, and alleges on the contrary that “ he was always ready, willing, and able to comply with the terms of said agreement, until the plaintiff, by his failure and refusal to perform his covenants in said agreement, made it impossible for the defendant to perform his covenants.” In a supplemental affidavit the defendant individuated the particulars in which the plaintiff had failed to perform his covenants, and repeated his averment that in consequence of that failure he, the defendant, was prevented from making the deed stipulated for in the articles.
It will thus be seen that the suit is brought by a vendee of land to recover back money paid on account of the purchase-money, without paying or tendering payment of the whole of the purchase-money, although the contract required him to pay the whole before he was entitled to demand a deed.
The affidavit of claim gives no explanation of the reason why the plaintiff did not pay or offer to pay the remainder of the purchase-money, and, as he was legally bound to pay all
Judgment reversed, and procedendo awarded.