Kent v. Silver

• Decision Date: 29 April 1901
• Docket Number: 32.
• Citation: 108 F. 365
• Parties: KENT v. SILVER.
• Court: U.S. Court of Appeals — Third Circuit

108 F. 365

KENT v. SILVER.

No. 32.

United States Court of Appeals, Third Circuit.

April 29, 1901

H. B Gill, for plaintiff in error.

C. W Conard, for defendant in error.

Before ACHESON and GRAY, Circuit Judges, and BUFFINGTON, District judge.

BUFFINGTON District Judge.

In the court below, judgment for want of a sufficient affidavit of defense was entered in favor of Michael T. Silver against Samuel Kent. 105 F. 840. The entry of such judgment is here assigned for error. The Columbia River Navigation & Trading Company borrowed from Michael T. Silver $5,000, giving therefor its note at nine months, dated December 13, 1897. The note was not paid, and this suit on the following paper was brought against Kent and others to collect the amount thereof:

'As a security for the attached note of the Columbia Navigation and Trading Company, dated December 13th, 1897, and due September 13th, 1898, for the sum of $5,000, the undersigned hold claims for labor, materials, supplies, etc., against the steamer City of Columbia amounting to more than the amount of said notes. For the sum of one dollar to us in hand paid, the receipt of which is hereby acknowledged, and for other valuable consideration, we, the undersigned, agree, undertake, and bind ourselves, if the above-described note is not paid at maturity by the Columbia Navigation and Trading Company, to collect said claim and pay the full amount due on the attached and above-described note on or before December 13th, 1898, to the holder thereof, without any deduction or charge whatever. In witness whereof, we have hereunto attached our seals and affixed our signatures this 13th day of December, 1897.

'(Signed) Max Levy.

'(Signed) Samuel L. Kent.

'(Signed) Harrington Emerson.

'Witness to all three signatures: G. P. Armstrong.'

The paper states it was attached to the note; and the express averments of the statement of claim that 'at the time the money was loaned and said note was given, and as inducement therefor, the said defendants, and each of them, guarantied to the plaintiff the payment of the said note, and executed therefor a certain written undertaking, of which the following is a copy,' are not traversed. The allegations of the affidavit that Silver was not present when the paper was executed by Kent, that he did not request Kent to sign it, and that it was not delivered by him to Silver, do not traverse such averments. Being...