Willock v. Hamilton

Citations

• 51 Pa. Super. 1
• 1912 Pa. Super. LEXIS 165

Syllabus

<p>Practice, C P. — Affidavit of defense — Reply to affidavit — Set-off—Rules of court — Real estate broker — Commissions—Principal and agent.</p> <p>1. A rule of court provided that when an affidavit of defense averred a set-off, the plaintiff should reply thereto. In an action of assumpsit the plaintiff claimed in his statement to recover from the defendant, who was his agent in a real estate transaction, which had fallen through, a sum of money which had been paid to the defendant as hand money for the plaintiff. Defendant filed an affidavit of defense in which he averred that the plaintiff owed him more than the amount in suit as commissions in the real estate transaction, and that plaintiff told him he might retain the amount of the hand money as part payment of the commissions. The plaintiff in obedience to the rule of court filed a reply verified by affidavit in which he denied that any commissions were due to defendant, and also denied that he had agreed that the defendant should retain the hand money, and further specifically averred that he had refunded the hand money to the proposed purchaser at the request of the defendant, and upon the express promise of the latter to reimburse the plaintiff. The defendant thereupon filed pleas of non-*' assumpsit, set-off and special matter set forth in the affidavit of defense. Held, (1) that in determining the issues of fact all the pleadings should be considered; and (2) that it was competent for plaintiff to prove that he had refunded the money at the request of defendant, and upon his express promise to repay the amount to plaintiff.</p> <p>Interest — Wrongful detention of money.</p> <p>2. In an action to recover money alleged to have been wrongfully detained, the plaintiff is entitled to recover interest for the period during which the money was unlawfully detained.</p>