Arnold v. Stoner

Opinion by Rice, P. J., If the sole consideration for the alleged promise of the defendant to pay the debt due from Hollobaugh to the plaintiffs was the sale and delivery by Hollobaugh to the defendant of certain goods, then, accepting as verity the averments of the affidavit of defense, the consideration wholly failed because the sale was not completed, and it is not in the power of Hollobaugh to complete it by a delivery of the goods. But it is urged that the failure of the performance of the contract of sale between the defendant and Hollobaugh cannot relieve the defendant of performance of his independent promise to pay the debt due to [541] the plaintiffs. In order to sustain this contention the plaintiffs’ counsel are driven to the assumption that the consideration for the promise, as between the defendant and the plaintiffs was the discharge of Hollobaugh from liability to the plaintiffs, or the latter’s promise to forbear pressing their claim. But these facts are neither distinctly alleged in the statement nor admitted in the affidavit of defense. The plaintiffs’ letter of March 8, 1900, would seem to indicate that they reserved the right to “take action” upon Hollobaugh’s proposition until after they should hear from the defendant. If they took action, and what it was, are matters left by the pleadings to mere surmise. The act of April, 1874, allowing a writ of error from an interlocutory order refusing judgment for want of a sufficient affidavit of defense was intended to reach only clear cases of error in law, and thus to prevent the delay of trial. Reference to many of the decisions of the Supreme Court thus construing the law will be found in Max Meadows Land & Improvement Co. v. Mendinhall, 4 Pa. Superior Ct. 398, to which may be added Erie v. Y. M. C. A., 151 Pa. 168, Ferree v. Young, 6 Pa. Superior Ct. 307, Shea v. Wells, 8 Pa. Superior Ct. 511, and Holland v. Sunbury Iron Works, 9 Pa. Superior Ct. 261. This is not such a case; the court committed no error in holding that the affidavit was sufficient to entitle the defendant to a jury trial. Appeal dismissed at the costs of the plaintiff without prejudice, etc.