Canfield v. Ditman

Citations

• 2 Monag. 42
• 16 A. 739
• 1889 Pa. LEXIS 1378

Syllabus

<p>In a suit on a promissory note, the defendant filed an affidavit of defence, in which he averred that the note had been given to prevent the protest of a previous note of the same tenor and effect, between the same parties, with the understanding that the defence which the defendant had to the previous note should apply to the second note ; that the defence to the first note was as follows : The payees of the note obtained the same during the absence of the defendant from the city and after refusal to give such note, by going to the clerk who indorsed checks and drafts for deposit, and prevailing upon him to sign the firm name to the note. The refusal of the defendant to give any such note was concealed by the payees from this clerk, and no consideration was paid to or received by the defendant then or at any time. There was a further averment that “the deponent expects to be able to prove that the above facts, or sufficient of them, were communicated td the plaintiff at the time he took the note from the payees.” The court made absolute a rule for judgment for want of a sufficient affidavit of defence. Held, not to be error.</p> <p>Per Curiam. — The defendant does not say that his clerk who signed the firm name to the first note did so without authority. He does say that the clerk was authorized to sign the firm name to checks and drafts for deposit. The omission of this averment in the affidavit is fatal, especially as it was a matter peculiarly within the knowledge of the defendant.</p>