Wilson v. Bryn Mawr Trust Co.

Practice, C. P. — Affidavit of defense — Order discharging rule — Appeals. An order discharging a'rule for judgment for want of a sufficient affidavit of defense will not be reversed by the Supreme Court in doubtful and uncertain eases, but only such as are very clear and free of doubt.

Appeal, No. 14, Jan. T., 1909, by plaintiff, from order of C. P. Montgomery Co., March T., 1908, No. 25, entering judgment for part of plaintiff’s claim on rule for judgment for want of a sufficient affidavit of defense in case of George B. Wilson v. Bryn Mawr Trust Company. Rule for judgment for want of a sufficient affidavit of-defense. The facts relating to this appeal were thus stated by Swartz, P. J., who heard the case in the court below. The damages claimed are as follows: Purchase money paid, less $87.50.......... $11,186.35 Interest on same from April 18th, 1907. Examination of title and recording deeds.... 50.00 Road tax $55.33, county tax $97.26, interest on mortgage................'........;.. 610.56 Loss because of increased value of farm..... 23,970.75 Loss on sale of Hagy farm................. 12,325.40 The interest of the insured which was covered by the policy was that of owner in fee of the propérty. As the grantee received no title or interest of any value, the basis of his loss is the true value of the property insured: Foehrenbach v. Title & Trust Co., 217 Pa. 331. The plaintiff, however, can recover nothing beyond the face of his policy, and his damages are confined to the actual loss sustained. If he paid $34,000 for the property and the farm had no value beyond the amount so paid, his loss is represented by the consideration paid. Only one-third of the consideration was paid and the balance is represented by a mortgage given by Mr. Henry. Plaintiff claims as part of his loss, this one-third of the consideration which he paid in cash. He had the use of the farm, and we do not see how he can claim as part of his loss, the taxes and interest on his investment, unless he furnishes us with an account of the income of the farm. If the income exceeded the sum paid out for taxes, interest and expenditures, he sustained no loss on this branch of his claim. We cannot assume that the use of the farm has no value. The claim for damages for the excess of the market value of the farm over the price paid, is disputed not because the item is not a proper element of damages, but because no such excess in fact it is averred can be shown. The averments of the affidavit of defense are not as specific upon this point as they should be, but an allegation that the sum of $1,050 per acre is a full price for the farm is in effect an averment that such price is its market value. When we say that an owner received a full price for his property, we mean ordinarily that he sold it at its fair market value. When an affidavit of defense discloses facts sufficient to indicate a good defense we are not in the habit of entering judgment without an opportunity to file a supplemental affidavit. This question of market value is eminently one for the jury and not for the court. The defendant denies that it had any knowledge of the alleged agreement between the plaintiff and Joseph J. Baughman for the sale of the Pinkerton farm at the time the policy of insurance was issued. We think the affidavit of defense is sufficient for all the claim of the plaintiff other than the sum of $11,186.36 and the item for conveyancing, $50.00, and on this latter item the plaintiff is entitled to interest from April 18, 1907. Judgment is accordingly entered for the plaintiff for the sum of $11,240.99 with leave to proceed to trial before a jury for the balance of his claim. Error assigned was the order of the court.