Odd Fellows Savings Bank v. Miller

36 A. 324, 179 Pa. 412, 1897 Pa. LEXIS 657

• Court: Supreme Court of Pennsylvania
• Decided: January 4, 1897
• Docket: Appeal, No. 107
• Status: Published

Opinion

Per Curiam,

Conceding the correctness of the principle invoked by the defendant, that “ in passing upon the sufficiency of an affidavit of defense the material averments of fact contained therein must be accepted as true,” it has no application to immaterial, irrelevant, obscure or evasive averments. The affidavit in this case is largely composed of irrelevant and immaterial matters, loose and evasive averments of fact, that are claimed to be a sufficient traverse and denial of all the material averments in the statement of claim. Considered as a whole, the affidavit is insufficient to carry the case to a jury and the court was right in so holding.

In attempting to traverse the plaintiff’s averment that the note in suit “ was dishonored at its maturity and was duly protested for nonpayment, after demand made, and of which defendant as indorser of the said note had due legal notice,” etc., the defendant says, “due notice of the nonpayment of said note was not given to affiant, personally, nor was due legal notice of the protest and nonpayment of the note given to affiant by mailing a copy of the protest to his residence in Sewicldey, Pennsylvania.” None of these averments is inconsistent with the fact that notice of demand, at maturity, and nonpayment of the note was duly mailed to defendant’s address. Mailing a copy of the protest to the residence of the indorser is certainly neither the only nor the ordinary way of giving notice. There is nothing in either of the assignments of error that requires further notice. .

Judgment affirmed.