Hutton v. McLaughlin

• Citation: 1 Pa.Super. 642
• Decision Date: 11 May 1896
• Docket Number: 91-1896
• Parties: Addison Hutton, Appellant, v. Margaret McLaughlin
• Court: Superior Court of Pennsylvania

1 Pa.Super. 642

Addison Hutton, Appellant, v. Margaret McLaughlin

No. 91-1896

Superior Court of Pennsylvania

May 11, 1896

Argued April 22, 1896 [Syllabus Matter]

Appeal by plaintiff, from order of C. P. Westmoreland Co., Aug. T 1895, No. 588, refusing rule for judgment for want of a sufficient affidavit of defense.

Assumpsit to recover $ 700 money loaned.

A rule was taken for judgment for want of sufficient affidavit of defense on the following statement of claim and affidavit of defense filed:

PLAINTIFF'S STATEMENT OF CLAIM.

Westmoreland County, ss.

Addison Hutton, the plaintiff, claims of Margaret McLaughlin, the defendant, the sum of $ 700, with interest thereon from October 10, 1889, which is justly due and payable by the defendant to the plaintiff upon the cause of action whereof the following is a statement:

On the 10th day of October, a. d. 1889, at the county aforesaid, at the special instance and request of the defendant, the plaintiff loaned to the defendant the sum of $ 700, to be used by her in paying and satisfying a certain judgment for a like sum, entered in the court of common pleas of the said county, of May term, a. d. 1889, No. 74, wherein William S Patton was plaintiff and James Means was defendant; the said judgment then being a lien upon a lot of ground with buildings thereon, in West Newton, Westmoreland county, being lot No. 31 on the general plan of West Newton borough, then the property of the defendant, and which had been conveyed to her theretofore, by the said James Means, by deed dated August 1, 1889, recorded August 7, 1889, in the office for recording deeds for the said county, in deed book No. 170 page 465, etc., subject to the lien of the said judgment.

The said sum, so loaned and borrowed as aforesaid, was applied by the defendant to the purpose for which it was borrowed, to wit, the payment of the said judgment, and the same was duly paid and satisfied of record on or about October 21, 1889, whereby the said lot of ground became and thereafter was freed and cleared of the lien thereof.

And in consideration of the premises, the defendant on the day first aforesaid, at the county aforesaid, undertook and faithfully promised to repay to the plaintiff the sum so loaned and borrowed as aforesaid, with interest, when the same should be demanded. There was no bond, note, duebill or other written instrument given or demanded at the time of the loan; the plaintiff relying solely upon the verbal promise of the defendant made as aforesaid.

And the plaintiff, on or about the 8th day of January, a. d. 1892, and at sundry times thereafter, has lawfully demanded of the defendant the payment of the said sum; but the defendant, at the time last aforesaid, and at sundry other times, when requested thereto, refused to pay, and still refuses to pay the same or any part thereof; and the whole amount remains due as aforesaid.

AFFIDAVIT OF DEFENSE.

Westmoreland County, ss.

Before me personally came Margaret McLaughlin, defendant, who being duly sworn according to law, deposes and says she has a full, just, legal and complete defense to the whole of the plaintiff's claim, the nature and character of which is as follows:

Defendant never borrowed the said sum of money claimed by the plaintiff from said defendant nor any part thereof, and never undertook, promised, or agreed orally or otherwise to pay the said sum or any part thereof to the said plaintiff by parol, in writing or otherwise, and is not indebted to the said plaintiff in any sum whatsoever.

Defendant further deposes and says that if any money was borrowed from the said plaintiff, and loaned by him to any one it was loaned to James Means who was then defendant's husband, upon his credit and undertaking, without any promise or undertaking on the part of this defendant to pay the same or any part thereof.

Defendant further avers that if James Means, with whom alone plaintiff dealt, is liable to plaintiff, which defendant does not undertake to determine, plaintiff could not claim from him or any one more than 3 per cent per annum, and then only from October, 1891, as defendant will be able to show if it be material to make proof of the same.

All of which defendant avers to be true and expects to be able to prove on the trial of said cause by competent testimony.

Errors assigned were refusing judgment and dismissing rule.

Affirmed.

Curtis H. Gross, Sidney J. Potts, Edward F. Pugh and Henry Flanders with him, for appellant. -- The affidavit of defense is insufficient because it neither admits nor denies several of the material allegations of plaintiff's statement of claim. An affidavit of defense must answer all material allegations of the statement: Class v. Kingsley, 142 Pa. 636. It is not sufficient in an affidavit simply to deny the indebtedness. The facts and circumstances must be stated: Gould v. Gage, 118 Pa. 559; Kaufman v. Iron Co., 105 Pa. 541. Nor is it sufficient to deny that a loan was made or that defendant promised to pay it: Bank v. Stadelman, 153 Pa. 634. The affidavit insinuates, but does not aver: Lehman v. Jaquett, 5 W. N. 183. Such an affidavit is condemned in Neal v. Vollrath, 24 W.N. 124.

Frank H. Guffey, Albert H. Bell with him, for appellee. -- The affidavit is not evasive or equivocal or wanting in positiveness: Gaily v. Kirkpatrick, 171 Pa. 50; Barker v. Fairchild, 168 Pa. 246. It is sufficient if an affidavit of defense sets forth facts showing the substantial prima facie defense which can probably be established; it is not necessary for a defendant to meet by oath every objection or argument against his case which fine critical skill may deduce: McPherson v. Bank, 96 Pa 139. If an affidavit sets forth substantially a good defense it should be supported: Thompson v. Clark, 56 Pa. 33; Selden v. Neemes, 43 Pa. 421. If it puts the plaintiff upon proof of any matters dehors the instrument sued on,...