Hutton v. McLaughlin , 1 Pa. Super. 642 ( 1896 )

Opinion by

Smith, J.,

We think the affidavit filed in this case was sufficient to justify the action of the learned court below in refusing judgment for want of a sufficient affidavit of defense.

Where the defense set up is in the nature of confession and avoidance, the facts relied upon must be set out fully and specifically, so that their relevancy and sufficiency may be determined by the court, on a motion for judgment based on their alleged insufficiency: Cosgrave v. Hammill, 173 Pa. 207; Class v. Kingsley, 142 Pa. 636. But where, as here, the original obligation upon which the plaintiff bases his cause of action is expressly traversed, with a specific denial of its material parts, and the whole tenor of the affidavit is in refutation of the contract set up in the plaintiff’s declaration, nothing further is necessary to put the plaintiff to proof of his claim before a court and jury: Landis v. Railroad Co., 133 Pa. 579; Barker v. Fairchild, 168 Pa. 246.

The material averments of the plaintiff’s declaration are that on October 10, 1889, he loaned $700 to the defendant upon her verbal promise to repay it on demand, and that the money was used by the defendant to satisfy a judgment against James Means, which was then a lien on real estate conveyed by Means to her. In her affidavit, the defendant denies that she ever borrowed this sum of money or any part of it from the plaintiff, as he alleges, and never undertook or promised to pay it, or any part of it; she further says that James Means was then her husband; that if any loan was made it was to him, upon his credit and undertaking, and with whom alone the plaintiff dealt; and that she is not indebted to the plaintiff in any sum whatsoever.

Here is an unequivocal denial of the plaintiff’s allegation of a loan to her, and of her promise to repay it, together with the averment that the defendant, at the time of the alleged loan, was a married woman, the wife of James Means, who was the defendant in the judgment mentioned.

The implication contended for, from the application of the money to a judgment which was a lien on the defendant’s real estate, is sufficiently met for the purposes of the present hearing by the assertion that the loan, if made, was to the defendant’s husband, and the judgment so paid was against him only. Under the law he alone was personally liable for the judgment. While a lien on the defendant’s land, it imposed on her no personal obligation: Act June 12, 1878, P. L. 205.

It may not be amiss to say that neither the declaration nor affidavit of defense in this case can be commended for that completeness of statement, as to essential facts, which the law now contemplates. Since the act of May 25 1887, the com-pie ten ess and accuracy required in these documents are substantially the same: Fritz v. Hathaway, 135 Pa. 274; and one evident purpose of that statute is to secure full and concise statements of the material facts relied upon, so that each party may know with reasonable certainty the nature and character of the other’s claim and contention relative to the subject-matter of the controversy. No such purpose is disclosed in either of these documents in this case; on the contrary each party seems to have studiously avoided setting forth anything which it might be thought would help the other, even to the suppression of matters properly includible in the pleadings, and necessary to a full understanding of the facts involved in the issue. This practice has been sharply criticised by our Supreme Court (Barker v. Fairchild et al., 168 Pa. 246), and we very willingly follow that tribunal in condemning it as misleading and improper.

A discussion arose at the argument over the correctness of the history of the case contained in one of the paper-books. While in cases requiring such a history the objection would be well taken, it need not be considered here, for the reason that it is not a proceeding in which, under the rules of this court, a history of the case becomes necessary. On an appeal from the action of a court of common pleas in granting or refusing judgment for want of a sufficient affidavit of defense, nothing but the declaration and affidavit of defense can be considered by this court: Hunter v. Reilly, 36 Pa. 509; Allegheny City v. McCaffrey, 131 Pa. 137; Lane v. Penn Glass Sand Co., 172 Pa. 252. It is therefore unnecessary to print a history of the case in the paper-books of this class of appeals.

The appeal is dismissed at the costs of the appellant, but without prejudice, etc.