Tranter v. Porter 207 Pa. 279

Tranter, Appellant, v. Porter.

Practice, O. P.—Affidavit of defense.

In an action for money liad and received in which plaintiff charged failure to apply properly and the affidavit of defense set up plaintiff’s knowledge and authority for what was done, the court below held the affidavit sufficiently responsive to take the case to a jury and the Supreme Court being equally divided affirmed the judgment.

Argued Nov. 5, 1903.

Appeal, No. 153, Oct. T., 1903, by plaintiff, from the order of C.- P. No. 2, Allegheny County, July T., 1903, No. 708, discharging rule for judgment for want of a sufficient affidavit of defense in case of Henry Tranter v. T. M. Porter and W. R. Porter, trading as Porter & Porter Company.

Before Mitchell, C. J., Dean, Fell, Blown, Mbstrezat and Potter, JJ.

Affirmed.

Assumpsit.for money had and received.

Plaintiff sued for money had and received, being money *280given to defendants to be used in purchase of stock in a projected corporation, with leave to apply part for a contingent fund for expenses of organization, etc., and plaintiff charged that defendants had reported purchase of the stock at $300 a share, whereas the stock reported as purchased was defendant’s own and had been issued to them at $200 a share and no contingent fund had been created. The affidavit of defense averred that plaintiff knew the stock was defendants’ and that the price was to be $300 which was the cost to defendants with a premium added for expenses, etc., which defendants had paid.

The court held that the affidavit was sufficiently responsive to take the case to the jury and discharged a rule for judgment for want of a sufficient affidavit.

Error assigned was the order of the court discharging the rule for judgment.

J. M. Stoner, with him F. R. Stoner, for appellant.

Frank W. Smith, for appellees.

November 11, 1903 :