Grimes v. Breeden

90 A. 78, 243 Pa. 304, 1914 Pa. LEXIS 618

• Court: Supreme Court of Pennsylvania
• Decided: January 5, 1914
• Docket: Appeal, No. 81
• Status: Published

Opinion

Per Curiam,

This appeal is from an order discharging a rule for judgment for want of a sufficient affidavit of defense, in a proceeding by scire facias to collect the principal of a mortgage claimed to be due because of the nonpayment of interest. The affidavit and supplemental affidavit are open to the criticism of the plaintiff’s counsel that they are lacking in orderly sequence in construction; they, however, are good in substance though bad in form. They contain allegations of a failure of consideration and of the violation of a contemporaneous parol agreement which induced the execution of the mortgage. It is averred that the mortgage was made for the accommodation of the mortgagee to serve a present use by him; that at the time there were unsettled accounts between the parties, the adjustment of which was necessary to determine what, if any, indebtedness existed; that these accounts were to be subsequently adjusted and interest was not to be paid on the mortgage; that no adjustment of accounts has been made, and that on an adjustment it will be found that the mortgagee is indebted to the mortgagor in a large' amount, the items of which are fully stated. These facts, if true, constituted a defense and judgment was therefore properly refused.

The order is affirmed.