McCullough v. Boyd

Citations

• 120 Pa. 552
• 14 A. 438
• 1888 Pa. LEXIS 510

Syllabus

<p>1. In a suit by the vendee of land to recover back money paid on account of purchase money upon a contract providing for a conveyance on payment thereof in full, an affidavit of claim which does not aver payment in full, or a tender of such payment, or an explanation why such payment or tender was not made, discloses no right of action in the plaintiff.</p> <p>2. The defect is not remedied by a general averment that defendant neglected or refused to comply with the terms of the agreement; if it were, it is fully met by an affidavit of defence alleging the non-performance of the plaintiff as the reason for the non-performance of the defendant.</p> <p>3. As, in such case, the plaintiff’s right of action depends upon facts dehors the instrument, to be averred and proved before he may recover at all, whether the action is within the affidavit of defence law, not decided.*</p>