165 A. 242
Supreme Court of Pennsylvania.January 18, 1933.
February 1, 1933.
Appeals — Practice — Affidavit of defense — Discharge of rule for judgment — Case not free from doubt — Question for jury.
A rule for judgment for want of a sufficient affidavit of defense should not be made absolute, where the record shows that the case is not free from doubt, and that questions of fact are raised requiring submission of the case to the jury.
Argued January 18, 1933.
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
Appeal, No. 12, May T., 1933, by plaintiff, from order of C. P. Dauphin Co., Sept. T., 1931, No. 1015, discharging rule for judgment for want of a sufficient affidavit of
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defense, in case of Harrisburg City School District v. Eureka Casualty Co. Affirmed.
Assumpsit on depositary bond. Before WICKERSHAM, J.
The opinion of the Supreme Court states the facts.
Rule for judgment for want of a sufficient affidavit of defense discharged. Plaintiff appealed.
Error assigned, inter alia, was order, quoting record.
Earl V. Compton, for appellant.
Arthur H. Hull, of Snyder, Miller, Hull Hull, for appellee, was not heard.
PER CURIAM, February 1, 1933:
Plaintiff school district appeals from refusal by the court below of judgment for want of a sufficient affidavit of defense in its action of assumpsit against defendant surety company on a bond to secure the school district’s deposit of $35,000 in the Commercial Trust Company of Harrisburg, which company, it is averred in the statement of claim, having closed its doors and been taken over, on October 15, 1931, by the state secretary of banking, defaulted in repayment of funds so deposited.
The bond in suit provided for termination of the obligation by the surety after five days’ notice to the obligee or its representative. Defendant avers it gave such notice of cancellation in a letter addressed to the “city treasurer and or collector of city taxes of the City of Harrisburg” under date of September 30, 1931, and also that notice of such action was received by the secretary of the board of school directors on the same date, as indicated in a letter from the board’s secretary to John C. Orr, agent for defendant bonding company. Plaintiff contends the notice in question did not refer to the bond in suit, and, as a further defense, avers Orr, as agent for
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defendant, orally, on or about October 8, 1931, reaffirmed and continued the bonding contract. Defendant contests both these statements, further alleging that up to and including October 5, 1931, no default in payment had been made by the trust company.
This brief and incomplete review of the pleadings is sufficient to make it evident the case is not “clear and free from doubt” and that the court below correctly decided that questions of fact were raised which required submission of the case to a jury: Elliott v. McGoun, 307 Pa. 185, 186; Rodgers v. Mann, 307 Pa. 452; Pyles v. Bosler, 308 Pa. 297.
The order refusing summary judgment is affirmed.