Callaghan v. Callaghan

Supreme Court of Pennsylvania

Callaghan v. Callaghan

39 A. 946, 185 Pa. 273, 1898 Pa. LEXIS 704

CourtSupreme Court of Pennsylvania

DecidedApril 4, 1898

DocketAppeal, No. 322

StatusPublished

Cited by1 cases

This text of 39 A. 946 (Callaghan v. Callaghan) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Callaghan v. Callaghan, 39 A. 946, 185 Pa. 273, 1898 Pa. LEXIS 704 (Pa. 1898).

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Opinion

Opinion by

Mb. Justice McCollum,

It seems to be conceded, by the parties to this suit that the compromise of their differences was annulled by noncompliance with its terms, and that the only question to be considered on this appeal is whether the supplemental affidavit of defense was sufficient to prevent judgment. The suit is on a note of which George Callaghan, now deceased, was the maker, and in which the plaintiff appears to be the payee. The plaintiff alleges in her statement of claim that she is entitled to the amount of the note with interest from April 1, 1891, less $470.66 indorsed thereon May 25, 1893. The defendants aver, in their supplemental affidavit, that the plaintiff is not now, and never was, the real owner of the note; that her husband, Robert Callaghan, [279]*279is the actual and beneficial owner of the same and that the suit upon it, is really “prosecuted for his use.” They also declare in this connection that they expect to be able to prove this averment on the trial of the case. It is further averred by the defendants that Robert Callaghan is indebted to the estate they represent in the sum of $2,803.55, with interest thereon from August 17, 1891, which sum they claim they are entitled to set off against the indebtedness of the estate on the note in suit. The nature and origin of Robert Callaghan’s indebtedness to the estate, the consideration of his assumption of it, and the agreement relating to it sufficiently appear in the affidavit and need not be repeated here. It may also be stated in this connection that the defendants aver that the credit of $470.66 already referred to was the balance of a temporary loan made by them to Robert Callaghan, and that the plaintiff by his direction and with their consent indorsed the same on the note, “without the payment by him to her of any part thereof.” This averment was doubtless intended as the statement of a circumstance corroborative of the defendant’s claim that the plaintiff’s husband was the owner of the note. The averments in the affidavit of defense must be accepted, on this appeal, as true, and they are clearly sufficient if established by competent evidence to allow a set-off against the note of the indebtedness of Robert Callaghan to the estate.

Judgment reversed and procedendo awarded.

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Opinion by

Mb. Justice McCollum,

It seems to be conceded, by the parties to this suit that the compromise of their differences was annulled by noncompliance with its terms, and that the only question to be considered on this appeal is whether the supplemental affidavit of defense was sufficient to prevent judgment. The suit is on a note of which George Callaghan, now deceased, was the maker, and in which the plaintiff appears to be the payee. The plaintiff alleges in her statement of claim that she is entitled to the amount of the note with interest from April 1, 1891, less $470.66 indorsed thereon May 25, 1893. The defendants aver, in their supplemental affidavit, that the plaintiff is not now, and never was, the real owner of the note; that her husband, Robert Callaghan, [279]*279is the actual and beneficial owner of the same and that the suit upon it, is really “prosecuted for his use.” They also declare in this connection that they expect to be able to prove this averment on the trial of the case. It is further averred by the defendants that Robert Callaghan is indebted to the estate they represent in the sum of $2,803.55, with interest thereon from August 17, 1891, which sum they claim they are entitled to set off against the indebtedness of the estate on the note in suit. The nature and origin of Robert Callaghan’s indebtedness to the estate, the consideration of his assumption of it, and the agreement relating to it sufficiently appear in the affidavit and need not be repeated here. It may also be stated in this connection that the defendants aver that the credit of $470.66 already referred to was the balance of a temporary loan made by them to Robert Callaghan, and that the plaintiff by his direction and with their consent indorsed the same on the note, “without the payment by him to her of any part thereof.” This averment was doubtless intended as the statement of a circumstance corroborative of the defendant’s claim that the plaintiff’s husband was the owner of the note. The averments in the affidavit of defense must be accepted, on this appeal, as true, and they are clearly sufficient if established by competent evidence to allow a set-off against the note of the indebtedness of Robert Callaghan to the estate.

Judgment reversed and procedendo awarded.

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39 A. 946, 185 Pa. 273, 1898 Pa. LEXIS 704, Counsel Stack Legal Research, https://law.counselstack.com/opinion/callaghan-v-callaghan-pa-1898.

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