46 Pa. Super. 103 | Pa. Super. Ct. | 1911
Opinion by
The plaintiff sues as the indorsee of a promissory note in the usual form, signed by the defendant, a copy of the note being attached to the statement of claim. The execution of the note is not denied. The statement avers that the payee in said note “for a good and valuable consideration paid to him by John C. Morrison, the said plaintiff, at the county aforesaid and before its maturity, indorsed and delivered the said promissory note to the said plaintiff.”
The affidavit of defense declares that the payee “gave said note to the plaintiff for an antecedent debt and received nothing of value for the same at the time he accepted said note.” Section 25 of the Act of May 16, 1901, P. L. 194, declares that “An antecedent or pre-existing debt constitutes value and is deemed such whether the instrument is payable on demand or at a future time.” It is therefore admitted that the plaintiff became a holder for value before the maturity of the note.
The affidavit undertakes to aver, however, that the plaintiff, although he acquired the note for value before maturity, took it with notice that as between the payee and maker there was a failure of consideration. The affiant states no facts whatever upon which his conclu
But does the affidavit disclose any facts from which the court could determine that the consideration of the note had failed? It is averred that the note in suit is a renewal
Again he says he was obliged to surrender it (the property) to the proper and lawful owner. In what way was he obliged? If by any judicial proceeding against the payee or against the maker who had given notice to the payee, then such facts could and should be averred. As long ago as Krumbhaar v. Birch, 83 Pa. 426, it was said that “A purchaser of personal property who seeks to defend an action for the purchase money on the ground of a defect in the vendor’s title, must show an eviction or an involuntary loss of possession.” The same principle is thus stated in Moul v. Pfeiffer, 23 Pa. Superior
We must conclude therefore that the learned court below was right in determining that the affidavit of defense was insufficient to prevent judgment.
Judgment affirmed.