Kennett Square National Bank v. Shaw

Contract—Promissory notes—National banks—Affidavit of defense. In an action on a promissory note, by payee against maker, an affidavit of defense that the note was to be discounted for the benefit of a certain corporation, and setting up a written agreement by payee to look to the dividends of said corporation for payment, is sufficient to send the case to a jury.

Appeal, No. 46, Jan. T., 1904, by plaintiff, from order of C. P. No. 5, Phila. Co., Sept. T., 1902, No. 1784, discharging rule for judgment for want of a sufficient affidavit of defense in case of Kennett Square National Bank •v. P. B. Shaw. Rule for judgment for want of a sufficient affidavit of defense. Assumpsit to recover the sum of $5,000. Plaintiff in its statement of claim averred that it held certain obligations of an insolvent corporation, the Avondale Marble Company; that the defendant P. B. Shaw and others organized a corporation known as the Pennsylvania Marble & Granite Company to develop and work the properties formerly owned by the Avondale Marble Company; that defendant made his promissory note for the benefit of said proposed corporation, and plaintiff discounted it with an agreement in writing by the president and secretary of the plaintiff that defendant should not be held personally liable on the note, but that plaintiff would look to the profits of the corporation; but that said corporation had refused to pay any part of its profits to plaintiff and said agreement was never authorized or ratified by the stockholders of the plaintiff. Defendant filed an affidavit of defense setting up in detail the facts, and the written agreement that he was not to be personally liable. The court discharged the rule for judgment for want of a sufficient affidavit of defense. Error assigned was the order of the court.