UNITED SEC. B. M. CO. v. STEINFELD ET AL., 302 Pa. 331 (1931)

153 A. 554

United Security Bond Mortgage Co. v. Steinfeld et al., Appellants.

Supreme Court of Pennsylvania.December 4, 1930.
January 5, 1931.

Practice, C. P. — Rule for judgment for want of a sufficient reply to new matter — Assumpsit on surety bond.

In an action of assumpsit on a surety bond the appellate court will not reverse a refusal of judgment for want of a sufficient reply to new matter filed by defendant in addition to his affidavit of defense, where the whole record is one of averment and denials, which can only be determined after full development at trial.

Page 332

Before FRAZER, C. J., WALLING, SIMPSON, KEPHART, SADLER, SCHAFFER and MAXEY, JJ.

Appeal, No. 301, Jan. T., 1930, by defendants, from order of C. P. No. 3, Phila. Co., Dec. T., 1929, No. 13911, discharging rule for judgment for want of sufficient reply to new matter filed by defendant in addition to its affidavit of defense, in case of United Security Bond Mortgage Co. v. Fred Steinfeld and Ætna Casualty Surety Co. Affirmed.

Rule for judgment. Before FERGUSON, P. J.

The opinion of the Supreme Court states the facts.

Rule discharged. Defendant appealed.

Error assigned, inter alia, was order, discharging rule for judgment for want of sufficient reply to new matter, quoting record.

Thomas F. Mount, with him Joseph W. Henderson, of Rawle Henderson, for appellant.

PER CURIAM, January 5, 1931:

The appeal before us is from the discharge by the court below of a rule for judgment for want of a sufficient reply to new matter filed by defendant in addition to its affidavit of defense.

The action is assumpsit on a surety bond executed by Fred Steinfeld, principal, and the Ætna Casualty and Surety Company as surety, guaranteeing the erection of fifty-three dwelling houses, with garages, etc., on which plaintiff claims to hold, for a good and valuable consideration paid by it to Steinfeld, second mortgages aggregating $106,000. Steinfeld defaulted in the erection of the buildings. The surety company in its affidavit of defense and “new matter” filed supplemental thereto, denies that plaintiff paid good or valuable consideration

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for the mortgages and avers fraud in securing the bond.

As said in Colonial Security Co. v. Levy et al. (No. 2), the preceding case, filed simultaneously herewith, unless the record shows facts “clear and free from doubt,” this court will sustain the refusal of summary judgment. The whole record of this case is one of averments and denials which can only be determined after full development at trial, consequently the court below was correct in so deciding.

The order of the court below is affirmed.