Lindsay v. Dutton

• Decision Date: 25 February 1907
• Docket Number: 163
• Citation: 66 A. 250,217 Pa. 148
• Parties: Lindsay v. Dutton, Appellant
• Court: Pennsylvania Supreme Court

66 A. 250

217 Pa. 148

Lindsay v. Dutton, Appellant

No. 163

Supreme Court of Pennsylvania

February 25, 1907

Argued January 17, 1907

Appeal, No. 163, Jan. T., 1906, by defendant, from order of C.P. No. 1, Phila. Co., Dec. T., 1905, No. 4,132, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Daniel S. Lindsay v. Lewis G. Dutton. Reversed.

Assumpsit on a promissory note.

The opinion of the Supreme Court states the case.

Error assigned was the order of the court.

The judgment of the court below is reversed with instructions to enter judgment in conformity with this opinion.

William S. Divine, for appellant.

John Eckstein Beatty, for appellee.

Before MITCHELL, C.J., FELL, BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.

OPINION

MR JUSTICE MESTREZAT:

This is an action by an indorsee against the maker of a negotiable collateral promissory note for $1,525, dated September 9 1903, made by the defendant and payable September 17, 1903, to the order of Charles S. Warner, who indorsed and delivered it after maturity to the plaintiff. By the note it appears that the maker delivered to the payee certain bonds and stocks as collateral security for its payment at maturity, and authorized the holder of the note to sell the collateral at public or private sale at any time or times thereafter without any further notice to the maker.

The defendant filed an affidavit of defense which was declared insufficient by the court below, and judgment was entered in favor of the plaintiff and against the defendant for the full amount of the note and interest. The defendant alleges the court erred in entering judgment against him, and has taken this appeal.

The statement avers that the payee, "for valuable consideration, endorsed and delivered said note with collateral, to plaintiff." The plaintiff concedes that the note was transferred to him after maturity, and admits that the defendant is entitled in this suit to any defense he might have against the original payee. There is little clearness or precision about the affidavit of defense. In drawing it, the defendant seems to have ignored the well-established rules requiring precision and definite averments in affidavits of defense. It sets up no sufficient defense except the payment of $250 which, it is averred, was paid on the note in suit. To that extent we think the affidavit is sufficient.

The averment in the affidavit that the payee had brought a former suit on the note and that it was discontinued without the defendant's knowledge or consent, is no defense in this action. If the discontinuance was improperly or illegally entered the defendant should have applied to the court to strike it off. So long as the record of that case shows that the suit has been discontinued, we must in this action, treat it as having been regularly and legally done. The action of the court in permitting that case to be discontinued by the...