Thompson v. Clark

1. If an affidavit of defence sets forth substantially a good defence, it 'should be supported. 2. An averment that a draft did not belong to the payee, but to the drawer, who had been fully paid by the acceptor, sets up a good defence in a suit by the payee against the acceptor, and should put the payee upon proof of his interest in the paper. 8. The defendant swore according to his belief, but added “ all of which he believes he can provethis brings the case within Black v. Halstead, 3 Wright 64.

Error to the Court of Common Pleas of Erie county: No. 108, to October and November Term 1867. This was an action of assumpsit by D. C. Clark against V. M. Thompson, commenced June 20th 1867. The cause of action was the following draft .and acceptance :— “ $200.00. Titusville, Pa., Dec. 13th 1866. “ At three months’ sight, pay to the order of D. C. Clark, Esq., Two Hundred Dollars, value received, and charge the same to account of D. L. Gray. “ To V. M. Thompson, Esq., Erie, Penn. “ Dec. 24th 1866. — Accepted, payable at Marine National. “ V. M. Thompson.” Endorsed “ Pay National Marine Bank, D. C. Clark.” The draft was protested for nonpayment March 27th 1867. A' copy of the claim having been filed, the defendant filed an affidavit of defence as follows :— “ That be hasoa just and full defence to the whole of plaintiff’s claim, the nature off which is as follows: — That D. L. Gray, the drawer or maker of the draft, upon the acceptance of which by defendant, this suit was brought, was engaged by the Thompson Oil Company to do certain work. That defendant advanced to him from time to time, money to apply upon said work, and also this draft, to an amount exceeding the value of the work done. That the draft in controversy in this suit was made payable to the order of D. C. Clark, the plaintiff in this suit, but that the said draft was never endorsed by said Clark, and, as defendant believes, never belonged to him, nor does it now belong to him ; but, as defendant believes, has heretofore belonged and does now belong to said D. L. Gray. That defendant has overpaid said Gray for the work done for said Thompson Oil Company, and that nothing is now due him from defendant; all of which he believes he can prove.” The court directed judgment against the defendant for want of a sufficient affidavit of defence, and the damages were liquidated at $207.25. The entering of judgment was the error assigned. cited Wheeler v. Wheeler, 1 E. D. Smith (N. Y.) 1; Black v. Halstead, 3 Wright 64.