Fuller v. Wade

84 A. 785, 236 Pa. 445, 1912 Pa. LEXIS 772

• Court: Supreme Court of Pennsylvania
• Decided: May 13, 1912
• Docket: Appeal, No. 128
• Status: Published

Opinion

Per Curiam,

This action was upon three promissory notes given by tbe appellants to Russel lams for tbe purchase of a horse. The affidavit of defense would be insufficient even if lams were the plaintiff, and it is, therefore, immaterial that the appellee may not be a holder for value without notice. The defense set up by the appellants is a breach of a written guaranty given to them by lams. A copy of the same is appended to the affidavit of defense, and the following is the clause upon which the appellants rely: “In case he (the horse) should not prove so, I agree either to replace him with another horse of the same breed and price, upon delivery to me of the above named horse in as sound and good condition as he is at present, or to return the notes given for him.” This guaranty was a conditional one, and imposed upon the appellants the duty of complying with its conditions before they could aver a breach by lams. There is no averment in the affidavit of defense that they, or any one of them, ever delivered, or offered to deliver, the horse to lams, or to any one for him, after their discovery that the animal was not what he had been represented to be. The affidavit does not even aver that lams was ever notified of the failure of his guaranty. In the absence of any averment of compliance by the appellants with the conditions of the guaranty upon which they would now stand, they have no right to have their notes returned, and their liability upon them continues. This was the correct conclusion of the court below, and the judgment is, therefore, affirmed.