Odd Fellows Savings Bank v. Miller

Citations

• 179 Pa. 412
• 36 A. 324
• 1897 Pa. LEXIS 657

Syllabus

<p>Affidavit of defense — Sufficiency of —Immaterial averments.</p> <p>Conceding the correctness of the principle that in passing upon the sufficiency of an affidavit of defense the material averments of fact contained therein must be accepted as true, it has no application to immaterial, irrelevant, obscure or evasive averments.</p> <p>Promissory notes — Protest—Notice to indorser — Affidavit of defense.</p> <p>Tn an action against an indorser on a promissory note plaintiff’s statement averred that the note “ was dishonored at its maturity, and was duly protested for nonpayment after demand made, and of which defendant as indorser of said note had due legal notice.” The affidavit of defense averred that “ due notice of the nonpayment of said note was not given to affiant, personally, nor was due legal notice of the protest and nonpayment of the note given to affiant by mailing a copy of the protest to his residence in Sewicldey, Pennsylvania.” Held, (1) that the averment of the affidavit of defense was not inconsistent with the fact that notice of demand at maturity, and nonpayment of the note were duly mailed to defendant’s address; (2) that the affidavit of defense was insufficient to prevent judgment.</p>