82 Pa. 354 | Pa. | 1876
delivered the opinion of the court, October 30th 1876.
In this case the court below ordered judgment to be entered for want of a sufficient affidavit of defence. The action was against the endorser of a promissory note. The affidavit averred that he endorsed it at the request, and for'the accommodation of Peter Moeck; that the latter delivered it to one John Bowley, in part payment, in the purchase of the lease of a tavern, and a large quantity of personal property thereon. It further asserted the worthlessness of the tavern, and the non-delivery of the most valuable portion of the personal property, and a failure of consideration to the full amount of the note. Neither in the court below, nor here, was it contended that the affidavit did not set forth a good ground of defence between the parties to the contract. As between them, and to the extent of the value of the personal property not' delivered, there was an undoubted failure of consideration. The contention then was, and now is, whether the affidavit avers sufficient facts to let in the evidence against the plaintiff below. The language is “ affiant further avers, expects to be able to prove and show on the trial of this case, that James Littell, the plaintiff above named, is not the owner and holder for value, and before maturity of the note in suit; but that the same was handed over to him by John Bowley the payee, for the purpose of debarring the maker and endorsees thereof from a defence to the same.” This is not only an express averment that the defendant in error is not a purchaser for value of the note, before it matured; but in substance the further averment, that it is still the property of Bowley. If the fact of present ownership in Bowley be proved, undoubtedly the same defence may be made to the note, as if the suit was in his name : Eyre v. Yohe et al, 17 P. F. Smith 477.
It is true the more usual form of an affidavit of defence is that the affiant “ verily believes” the facts which he alleges. Here instead of belief he positively avers their actual existence. In its legal effect this form of an affidavit may be no stronger than one in the usual form ; but certainly it is no weaker. It is quite as effective to prevent the taking of judgment.
The facts set forth as constituting the defence, need be averred with reasonable precision and distinctness only : Bronson v. Silverman, 27 P. F. Smith 94. A reasonable intendment should be made in favor of the affidavit: Twitchell v. McMurtrie, Id. 883. We think the controlling facts are averred with sufficient precision and distinctness. An ability to prove those facts is distinctly asserted. The assignments are therefore sustained.
Judgment reversed, and a procedendo awarded.'