Prosise v. Phillips

41 App. D.C. 226 | D.C. Cir. | 1913

Mr. Justice Van Okstost,

delivered the opinion of the Court:

It is contended by counsel for defendant that the facts stated .in the affidavit are sufficient to show that the delivery of the note was conditional, and not absolute, and, being such, parol evidence may be admitted to prove the conditional delivery and nonfulfilment of the condition, in order to avoid the effect of the instrument. This principle is sound, but inapplicable to the present case. Here, the note delivered was absolute upon its face, and the agreement relied upon was not a condition affecting the delivery of the note, but an oral agreement to the effect that, if the bank should collect anything from the makers of the original notes, the amount so collected should be credited upon the note of defendant. The note was not therefore given upon a contingency to happen in the future, the happening of which should be necessary to make the note a binding obligation against the obligor. Neither is it susceptible of the defense that no agreement was in fact entered into as a consideration for the delivery of the note. Counsel for defendant relies upon the leading case of Burke v. Dulaney, 153 U. S. 228, 38 L. ed. 698, 14 Sup. Ct. Rep. 816. But this is not such a defense as comes within the classification there made of available defenses to written instruments.

The second defense set up in the affidavit presents a more difficult question. It is conceded, as indeed it must be, that a defendant in a suit upon a promissory note may always submit proof to show that he is entitled to credits as an offset against the amount claimed. Bule 13 provides as follows: “In any action arising ex contractu, if the plaintiff or his agent shall have filed, at the time of bringing his action, an affidavit setting out distinctly his cause of action, and the sum he claimed to be due, exclusive of all set-offs and just grounds of defense, and shall have served the defendant with copies of his declaration and of said affidavit, he shall be entitled to a judgment for the amount so claimed, with interest and costs, unless the defendant s'hall file, along with his plea, if in bar, an affidavit of defense, denying the right of the plaintiff as to the whole or some specified part of his claim, and specifically stating also, in precise and distinct terms, the grounds of his defense, which must be such as would, if true, bo sufficient to defeat plaintiff’s claim in whole or in part.”

While the rule undoubtedly requires a defendant, when claiming the benefit of a credit as a partial defense, to set it out with the amount specifically stated, in order that, if the plaintiff should elect to admit the credit, judgment for the balance may be entered, and a trial thereby avoided, yet the rule will not admit of so harsh an application as to prevent a defendant from availing himself of this defense where the amount and the facts relating to the credit are in the possession of the plaintiff, and can be ascertained only upon the trial. Defendant, in his affidavit of defense, states that he is entitled to “credits upon said note, under the agreement aforesaid, which have not been made by the United States Trust Company or plaintiff, which facts he expects to prove at the trial of this case, but he cannot now more specifically set forth said credits, as the information concerning same is in the possession of the United States Trust Company and plaintiff.” This statement brings defendant clearly within the construction placed upon the rule in The Richmond v. Cake, 1 App. D. C. 447.

The judgment is reversed with costs, and cause remanded for further proceedings not inconsistent with this opinion.

Reversed.