Penrose v. Caldwell

29 Pa. Super. 550 | Pa. Super. Ct. | 1905

Pee Cxjeiam,

An affidavit of defense must not be self-contradictory. It is argued that an original and a supplemental affidavit of defense are to be construed as one affidavit, and, therefore, when, without explanation, the supplemental affidavit contradicts the averments of the original in matters essential to a valid defense, the court is warranted in holding that they are insufficient to prevent a judgment. This maj'- be conceded as a general proposition, but we think it does not apply to the case. The supplemental affidavit is fuller and more specific than- the original, but the facts averred in it are not irreconcilable with the facts expressly averred in the original, or with the necessary inferences to be drawn therefrom.

The affidavits contain recitals which, for the sake of conciseness, might well have been omitted. Passing these, as well as the averment that the defendant never owed the sum for which the note .was given, we find it distinctly and positively averred that, prior to the giving of the note, a third person had paid to the plaintiff, for and on behalf of the defendant, the full amount of the claim for which the note was given, “ for the purpose of liquidating the said claim in full, if any, that the said plaintiff had,” and that this fact was not learned by the defendant until after he had given the note. The time and place of payment, as well as the sum paid, aré set forth with particularity, and the affidavit concludes: 45 All of which is true and the deponent verily believes he can prove on the trial of the case.” It is thus seen that the defendant avers positively, not upon mere information, the existence of certain facts which, if proved, would constitute a defense, and that he verily believes he can prove them upon the trial. The concluding averment is almost literally a copy of one which in Hutton v. McLaughlin, 1 Pa. Superior Ct. 642, was held sufficient. See also Eyre v. Yohe, 67 Pa. 477.

The appeal is dismissed at the costs of the appellant, but without prejudice, etc.