Langfeld v. Lyon

Opinion, Mr. Justice Clark: The affidavit of defence, which was first filed in this case was insufficient; it was so vague, indefinite and general in its terms, that it is quite impossible to determine from it whether the payment of the plaintiff’s claim, which was asserted therein, was an actual payment, or was averred merely as a conclusion of law arising from facts which were not disclosed. Judgment was therefore, on June 15, 1889, entered for the plaintiffs, because of its insufficiency. It seems, however, that for some reason, presumably on account of the defendant’s alleged absence from the city at the time, leave was a few days afterwards given to file a supplemental affidavit, as of the date the judgment was entered, nunc pro tunc, and a rule was also entered to show cause why the judgment should not be opened, and the defendant let into a defence. This rule was subsequently discharged; and the question now turns upon the sufficiency, not only of the original, but of the original and supplementary affidavits ; for as the latter was filed as of the day judgment was entered, nunc pro tunc, the judgment must be taken to have been entered upon the insufficiency of both. This was doubtless the purpose of the court in making the order for filing the supplementary affidavit as of that date. This affidavit was made by the defendant when he was absent from home, and when he had no access to his books to refresh liis recollection as to the dates of the respective pay [444] menta, and it must be conceded that it is not as full, precise, and satisfactory as it might have been, under other circumstances, but we think it sets up a sufficiently substantial defence. Admitting the execution of the obligation in suit on the day of its date, July 5, 1883, the affiant states that he borrowed the money for the use of the Reticher Cured Feed Company, of which he was a member; that in a very short time thereafter he paid to the plaintiffs $160 on account of the loan, by a check of that amount, and that his partner afterwards paid the balance; that before leaving Philadelphia to go to Chicago, where the affiant was when the affidavit was made, he called upon the plaintiffs with reference to this claim, and that they freely admitted to him that the debt was fully paid; that the defendant was not indebted to them in any sum whatever; and that they had no claim upon the cause of action embraced in the statement filed, or upon any other. He further states that owing to his absence from home and want of access to his books, he is unable to give the dates of the respective payments, but avers his willingness upon his return, if necessary, to do so. The averments contained in the affidavit are of actual payments on the debt in suit, made by the defendant himself or his partner, to the plaintiffs themselves, and of admissions of the plaintiffs to that effect. We think this is sufficient. The judgment is reversed, and a procedendo awarded. On March 28, 1890, an order for a re-argument was refused.