The Rudolph Wurlitzer Company v. Kirk order and condition. This deponent beJohnson & Company. lieves that the said organ was not a new This deSale-Affidavit of defense-Warranty— instrument, but second-hand. Damages-Set-off. ponent further avers that the said organ was not in good order and condition, but was so improperly constructed that it has been continually out of repair, necessitating the services of a man to fix the same almost every day, sometimes two or three times a day. In a suit on promissory notes given in part payment for an Orchestra Organ, an affidavit of defense is insufficient which avers that the instrument was represented to be new, well made and in good condition; but the deponent believes it was not new, but second-hand, and it was not in good condition, and improperly constructed, and the amount of consideration already paid was equal to or more than its value at wholesale. A defendant who states in his affidavit his belief in a matter must allege also that he expects to be able to prove it on the trial. An averment within the personal knowledge of the affiant should be averred posi tively and not on belief. S. V. Hosterman, for rule. March 27, 1915. Opinion by HASSLER, J. This suit is brought to recover the amount of four promissory notes and a check of which the defendant is maker, and drawer, and the plaintiff payee. The plaintiff's statement contains copies of the notes and check, and alleges that they have not been paid. In his affidavit of defense, after admitting the execution and non-payment of the notes and check, is as follows: "The notes sued upon represent the unpaid balance on account of a Wurlitzer Orchestra Organ which was purchased by the defendant from the plaintiff. Said organ was represented to be a new instrument, well made, and in first-class It will be observed that the defendant does not allege as a fact that the organ was not a new instrument as it was agreed it should be. He says he believes that it is not a new organ, but does not that he expects to be able to prove the state upon what he bases his belief, nor allegation at the trial. It is well settled that where a defendant states that he believes a matter, it is necessary that he should allege that he expects to be able to prove it at the trial, or the affidavit of defense is not sufficient to prevent judgment: Newbold v. Pennock, 154 Pa., 591; Iron Company v. Iron Company, 216 Pa., 432; Kensington Bank v. Ware, 32 Sup., 247; Eliel v. Chamberlain, 48 Sup., 610. Whether the organ was a new one or not, is a matter of which the defendant should have had personal knowledge, as it was in his possession for some time. It was necessary, therefore, for him to aver that it was not a new organ positively and directly; and not that he believes that it is not new: Dusenberry v. Insurance Co., 188 Pa., 454. The defendant further alleges that it was represented that the organ was in first-class order and condition, and then says that it was not in good order and condition, but does not state in what particulars it was not so. That it was necessary for him to do: Brieck Bros. v. Baziotes, 242 Pa., 490; Genesee Paper Co. v. Bogert, 23 Sup., 23; Pittsburgh Auto Co. v. Sand Co., 54 Sup., 632. The defendant further claims a set-off | tiff's attorney, and was on the trial list against the plaintiff's claim. He alleges for the week of court beginning Febthat the amount he has already paid is ruary 2, 1914. Even though the affidavit equal to or more than the value of the of defense is insufficient to prevent judgorgan at wholesale. This is not the ment, which question we do not pass on, proper standard of damages. The the plaintiff under these circumstances proper measure of damages in such case is not now entitled to judgment, as his is the difference between the price and act in putting the case on the trial list the value, if not as represented. This was a waiver of his right to ask it. value is the market value, and not what it is worth at wholesale. There is no allegation as to what the defendant agreed to pay for the organ, nor is it stated what its value is since the defendant finds that it is not as represented. The allegation of what it is worth at wholesale is not a statement of its value. The affidavit of defense must state the set-off claimed with as much particularity as is required of the plaintiff in his statement: Breitweiser Lumber Co. v. Crick. 55 Pa., 72; Ryon v. Starr, 214 Pa., 310. In O'Neal v. Rupp, 22 Pa., 395. Justice Knox, in deciding a question similar to this, says: "The plaintiff had his election, either to treat the affidavit of defense as sufficient and take the ordinary course to bring his cause on for trial, or to test the validity of the affidavit by entering a rule for judgment. It would seem that he adopted the first branch of this proposition, for, on the 16th day of April, 1853, a rule was taken upon the defendant to plead, and two days afterwards a rule was entered to arbitrate, which last rule was, on the 24th of May, stricken off at the plaintiff's instance and costs. "After these steps had been taken, and five months after the affidavit had been filed, the plaintiff obtained a rule for judgment, which was made absolute upon the ground that the affidavit was defective in not setting forth a defense that would be effectual in law. "It may be said that a defendant is not injured by reason of delay in taking judgment; but of this we cannot be certain. It was fair for him to presume that his case would be investigated in open court and tried in the usual method, and a prudent man would have good his defense. This would require an provided the means necessary to make expenditure of time and money, besides which, delay is generally injurious even to the losing party. "There is no hardship in holding that a plaintiff may waive his right to ques March 27, 1915. Opinion by HASS- tion the sufficiency of an affidavit of deLER, J. The statement in this case was filed on October 3, 1913. The affidavit of defense was filed October 17, 1913. Defendant entered pleas of non assumpsit and set-off on January 26, 1914. The case was put down for trial by the plain fense, and we think this case a proper one to apply the rule that he may do so." This case was decided prior to the passage of the Procedure Act of 1887, but both our Supreme and Superior Courts have declared it to be applicable to cases arising since that Act. In Superior National Bank v. Stadel man, 153 Pa., 634, the above case, as well as many others decided prior to the passage of the Act of 1887, is cited and followed, and it is held that where the plaintiff entered a rule to plead, and afterwards a rule for judgment for want of a sufficient affidavit of defense, that the latter rule was too late, if the defendant objected, as he had waived his right to ask for such a judgment, by entering a rule to plead. In Bordentown Bank v. Restein, 214 Pa., 30, and in Thompson v. Donaldson, 43 Superior 585. O'Neal v. Rupp, supra, as well as other cases to the same effect, are cited and followed. The Courts of Common Pleas of this State have applied the rule in numerous cases, the facts of which are very similar to those involved here. Among those are First National Bank v. Gitt, 28 York, 63; Lancaster Trust Co v. Dietz, 14 Northampton, 7; Hellman . Horn, 1 Kulp, 138; Brown v. Headly, 3 C. C., 76; Hoke v. Martin, 7 York, 65. As we are of the opinion that the plaintiff has waived his right to ask for judgment for want of a sufficient affidavit of defense by having put the case on the list for trial after it was at issue, it is unnecessary for us to pass upon the question of its sufficiency. We discharge the rule. The Realty Company v. Herold. Option to sell real estate-Consideration -Commissions — Affidavit of defense. In a suit by real estate agents for commissions agreed upon for the sale of a property under an option from the defendant, the cwner, reciting that it is for a valuable consideration, an affidavit of defense is insufficient which avers that "the contract upon which the plaintiff's claim is based is without consideration and without mutuality." The defendant could not deny the consideration averred in the contract without alleging fraud, accident or mistake, and it was not necessary for the plaintiff to sign the contract, it being executed as to him. Rule for judgment for want of a sufficient affidavit of defense. C. P. of Lancaster Co. October Term, 1914, No. 38. Willis G. Kendig, for rule. March 27, 1915. Opinion by HASSLER, J. The claim of plaintiffs in this case is based upon a written option under seal, dated June 25, 1904, of which the following are the material parts: "Know all men by these presents that I, Fred Herold, of West Hempfield Township, Lancaster County, for a valuable consideration, do hereby grant, bargain and sell unto the Realty Company of Lancaster, Pennsylvania, the exclusive right and option to sell my farm situate in West Hempfield Township, and briefly described as follows:" Here follows description: "The said option to be and remain in force for the period of from June 25 to Oct. 15, 1914, from the date of this instrument; and I further agree that in the event of the sale of the said farm by the said Realty Company, or by myself, or any other person, during the life of this option, to pay to the said Realty Company a commission of 2 per cent, the said commission being due the Realty Company upon the signing of articles of agreement for the sale of the said farm either by a purchaser supplied by the Realty Company, or by myself, or by any other person, during the life of this option." The plaintiff alleges that after the signing of the option and delivering it to them, and before the time fixed for its expiration, the defendant entered into articles of agreement to sell the farm to one John L. Herr for $2,000, conveyance to be made on January 1, 1915. Two per cent commission on this sum of $2,000, amounting to $40, is the amount claimed by the plaintiff. The defendant in his affidavit of defense does not deny any of the allegations contained in plaintiff's statement, but alleges that the option is without consideration, and that it is void for want of mutuality. It is urged that we should not consider these allegations, as they are not of fact but of law, and therefore do not constitute a sufficient defense to plaintiff's claim. We do not think it necessary to pass upon this question, as the allegations are not, in our opinion, sufficient to prevent judgment, | whether they be of fact or law. The defendant states in the writing, the correctness of which he does not deny, that he gives the option "for a valuable consideration." He cannot be heard to contradict his written agreement unless he shows that something was included in it, or omitted from it, through fraud, accident or mistake, and he must allege this in his affidavit of defense. This he has not done. Nor does the option lack mutuality. The plaintiffs, according to the terms of the writing, did all that was required of them, viz. paid or gave a valuable consideration. There was nothing further, according to the writing, for them to do. As to them it was executed, and as to the defendant it was executory, and he put in writing what he agreed to do. It was, therefore, necessary for him to sign, but not for the plaintiffs to do so, as there was nothing in its terms which they were required to do in the future. Options or writings like this are a frequent occurrence in sales of real estate, and have been held not to be wanting in mutuality: Corson v. Mulvany, 49 Pa., 88; Smith's Appeal, 69 Pa., 474; Newell's Appeal, 100 Pa., 513; Knerr v. Bradley, 105 Pa., 190. The defendant having sold the farm in question for $2,000, by the terms of his agreement he is indebted to the plaintiff in the sum of $40. As the affidavit of defense contains nothing sufficient to prevent judgment in favor of the plaintiff for this amount, we make absolute the rule, and enter judgment for the plaintiff for $41.50. Tegal Miscellany. At a recent meeting in Hampton one of the speakers told of a colored witness who was rebuked by the judge for the constant repetition of the phrase, “also and likewise." Now, Judge," replied the witness, "there's a difference, between those words. I'se gwine to 'splain. Yo' father was an attu'ny and a great one, wasn't he?" The judge assented, somewhat placated. "Well, judge, yo's an attu'ny also, but not likewise. See, Judge?" -Case and Comment. SUPERIOR COURT OPINIONS. By ORLADY, J.: Hilton . Mfg. Co. Reversed. By TREXLER, J.: Shenk's Estate. Reversed. O. C. ADJUDICATIONS. Tobias Landis, Manor Twp. Rose C. Brogan, City. "She had Twelve Hundred and Fifty LANCASTER LAW REVIEW. Dollars ($1250), which was invested in VOL. XXXII.] FRIDAY, MAY 14, 1915. [No. 28 Superior Court. Shenk's Estate (Shenk's Appeal). Decedents' estates-Claim for boarding by son-in-law-Sufficiency of proof Presumption. It was error for the court below auditing a decedent's estate to allow a claim of the decedent's son-in-law for boarding under an agreement shown where the decedent had left her son-in-law claiming she owed nothing and no demand was made for nine months before her death, and the evidence to sustain the claim was vague and indefinite and insufficient to overcome the presumption that the board bill was paid by the decedent in her lifetime and the amount claimed was unascertainable by competent testimony. It requires more than a semblance of proof to establish such claims. They require strict proof. Appeal No. 132 of October Term 1914 by John H. Shenk, residuary legatee from decree of O. C. of Lancaster Co., dismissing exceptions to adjudication in the estate of Anna E. Shenk, deceased, and confirming the same. Reversed. The exceptions to the adjudication dismissed by the court below, SMITH, P. J., specified the award therein of $470 to Edward Hatton, claimant and not awarding the balance to John H. Shenk. (See 31 Law Review 245.) On appeal the following assignments of error were filed: 1. The Court erred in its dismissal of the exceptions filed by the appellant, in the following opinion and decree: The testimony as a whole, seems to have justified the award, and, therefore, the exceptions are dismissed and the adjudication is confirmed absolutely." 2. The Court erred in finding that the decedent had only Twelve Hundred and Fifty Dollars ($1250), when the absolute and direct testimony was that she had more than Fifteen Hundred Dollars ($1500). The finding of the Court is as follows: bank deposit certificates." 3. The Court erred in finding, after saying there was no positive testimony upon the amount due: "but there was some (testimony) of a nature which admitted of a computation which demonstrates that the claim was not in excess of the amount owing." 4 The Court erred in not finding, upon the testimony, that there was a presumption of payment in this case, from year to year, as the claims were due; and that that presumption of payment had not been lifted. H. Frank Eshleman, for appellant. The circumstances of the case are such as to show clearly that nothing is owing to the claimant. Carpenter v. Hays, 153 Pa. 436. The evidence offered is absolutely insufficient. Coulston's Estate, 161 Pa. 151. Griffith's Estate, 14 W. N. C. 486. The Court below disregarded the presumption of payment. McConnel's Appeal, 97 Pa. 31. Carpenter v. Hays, 153 Pa. 432. Devereaux's Estate, 184 Pa. 429. Whether a presumption of payment is rebutted by a given state of facts is a question of law for the court. Beale's Ex. v. Kirk's Admin., 84 Pa. |