Reznor v. Supplee

Mr. Justice Woodward delivered the opinion of the court, The affidavit of the defendant in the court below averred that the note in the suit was given as a donation to a church upon the express condition that the lot on which the church building was erected should be conveyed to the church ; that the condition had [182] not been complied with, and that he verily believed and expected to prove that the note had been passed by the payee to the plaintiffs to avoid this defence, and the plaintiffs merely held it for the use of the payee without any consideration between them. This was such a statement of defence as to require the submission of the case to a jury. The authorities are uniform on this subject. In Black v. Halstead, 3 Wright 64, it was said, in the opinion of the court, that “ it has been generally held that when the facts forming part of defendant’s case are averred upon information and belief, the defendant must add that he expects to prove them, or set out specifically the sources of his information, or the facts on which his belief rests. * * * If he avers an expectation of ability to prove the facts there is a just presumption that they can be proved, for there can be no expectation without a reasonable probability.” In Thompson v. Clark, 6 P. F. Smith 33, an affidavit was held to he sufficient which set forth the belief of the defendant that a draft for which suit had been brought by the payee against the acceptor, did not belong to the payee, but to the drawer, who had been fully paid by the acceptor, the statement of his belief of the facts accompanied by the statement of his belief that he could prove them. In the present case, the failure of the consideration of the contract on which the suit was founded, the actual ownership of the note by the payee, and the fictitious character of the endorsement and transfer to the plaintiffs were adequately averred. Judgment reversed, and procedendo awarded.