Thompson v. Clark
| Decision Date | 28 October 1867 |
| Citation | 56 Pa. 33 |
| Parties | Thompson <I>versus</I> Clark. |
| Court | Pennsylvania Supreme Court |
Before THOMPSON, STRONG, READ and AGNEW, JJ. WOODWARD, C. J., absent.
Error to the Court of Common Pleas of Erie county: No. 108, to October and November Term 1867. J. R. Thompson, for plaintiff in error.
E. Camphansen, for defendant in error, cited Wheeler v. Wheeler, 1 E. D. Smith (N. Y.) 1; Black v. Halstead, 3 Wright 64.
The opinion of the court was delivered, October 28th, 1867, by AGNEW, J.
It is not necessary that an affidavit of defence should be drawn with so much nicety that no critical skill can suggest an objection; but if it sets forth substantially a good defence it should be supported. It is impossible not to see that Thompson does aver in this affidavit, that the draft never was, and was not then, the property of Clark, the payee, but of a certain Gray to whom it was given for work done, which he has fully paid for, leaving nothing then unpaid to him. The fact, therefore, that the draft was drawn payable to Clark would amount to nothing, if it was for the benefit of Gray and Clark had no interest in it. As the legal holder he might sue and collect it for the use of Gray, but if the draft always was and still is the property of Gray, and it is proved (as the affidavit avers), that the defendant has overpaid him for his work by advances of money from time to time, and nothing is now due to him from the defendant, this is a good defence to the recovery of Clark, sufficient to put him upon proof of an interest of his own in the paper.
It is true Thompson swears according to his belief, but he also adds — "all of which he believes he can prove" — and this brings the case within the test of sufficiency stated in Black v. Halstead, 3 Wright 64.
Judgment reversed, and a procedendo awarded.
To continue reading
Request your trial
-
Perkins v. Coray
... ... A ... Ricketts, for appellant, cited Kaufman v. Cooper Iron ... Mining Co., 105 Pa. 537; Thompson v. Clark, 56 ... Pa. 33; Noble v. Kreuzkamp, 111 Pa. 68; Reznor ... v. Supplee, 81 Pa. 180; Moore v. Smith, 81 Pa ... 182; Twitchell v ... ...
-
Blakeslee Manufacturing Co. v. Hilton
...forth in words or by necessary inference therefrom, the indispensable elements of a good defense: Selden v. Neemes, 43 Pa. 421; Thompson v. Clark, 56 Pa. 33; McPherson Bank, 96 Pa. 135; Hunter v. Reilly, 36 Pa. 509. Thomas F. Richmond, for appellee. -- If time was of the essence of the cont......
-
Hutton v. McLaughlin
... ... 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, ... ...
-
Pennock v. Kennedy
... ... 541; Gould v. Gage, 118 Pa. 559; ... Willard v. Reed, 132 Pa. 5; Winsor v. Bank, ... 81* Pa. 304; Black v. Halstead, 39 Pa. 64; Thompson ... v. Clark, 56 Pa. 33 ... Before ... PAXSON, C.J., STERRETT, McCOLLUM, MITCHELL and DEAN, JJ ... [26 A. 16] ... ...