Showell v. Barr

Opinion by Mr. Justice Mestrezat, This is an action of assumpsit brought by the holder against the maker to recover the debt and interest al [44] leged to be due on two promissory notes. The learned court below entered judgment for want of a sufficient affidavit of defense, and the defendant has taken this appeal. We do not think this is a case for summary judgment. The plaintiff is the indorsee of the payee and took the notes after maturity. The statement does not aver that the plaintiff is a holder in good faith and for value, and that at the time the notes were negotiated he had no notice of any infirmity in the instrument. The affidavit of defense avers failure of consideration, caused by certain acts and conduct of the payee in violation of his express agreement inducing the execution of the notes. The defendant further avers that after the maturity of the notes in suit they were “put into the hands of plaintiffs under a collusive arrangement to assist said Hall (payee) in collecting said notes contrary to the defendant’s rights.” While the affidavit certainly lacks clearness and conciseness, we think, under the pleadings, it is sufficient to send the case to a jury so that the issue may be determined after a full development of all the facts. The notes were not given for a patent right within contemplation of the Act of April 12, 1872, P. L. 60, and the averment in the affidavit in reference thereto is without merit as a defense. The judgment is reversed with a procedendo.