Jensen v. Braslafsky
Jensen v. Braslafsky
Opinion of the Court
The facts set forth in the affidavit of defense indicate with sufficient clearness that this detached writing purporting to be a promissory note for the payment of $148, was a part of a contract containing a number of stipulations in regard to the disposition of goods Of the Donald-Richard Company, to be offered for sale by the defendant. While the paper on which the action is founded was signed by the defendant the other part of the contract, to wit, the order for the enumerated goods was not signed by him, but by a salesman of the Donald-
The question is one properly for a jury to determine, and the order of the court in discharging the rule for judgment for want of a sufficient affidavit of defense, is affirmed.
Reference
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- Syllabus
- Promissory notes — Solders in due course — Affidavit of defense— Sufficiency. In an action by the. holder in due course of' a promissory note an affidavit of defense is sufficient, which avers that the note formed part of the printed order for toilet articles, which was so cunningly attached to the contract that it could be separated, one part of which with the maker’s name constituting a negotiable instrument, and the other an unsigned order for the goods; and which further avers that the defendant was under the impression that he was merely contracting for the merchandise mentioned in the order. Whether or not it was negligence for tbe maker to sign such a writing is a question of fact for the jury, and if there was no negligence, tbe separation of tbe note from tbe contract was a forgery of tbe writing, as it was executed by tbe defendant, and there was nothing to estop him from alleging and proving it.