Merchants National Bank v. Eckels
Merchants National Bank v. Eckels
Opinion of the Court
Opinion by
The sole question in this case is whether the averments of facts contained in the affidavits of defense are sufficient to prevent a summary judgment. In disposing of such questions, the truth of aE facts properly averred in the affidavit of defense must necessarily be conclusively presumed to be true, because the rule for judgment for want of a sufficient affidavit is in the nature of a demurrer thereto. Applying this principle to the case before us, we are aE of opinion that the facts properly averred by the defendant are sufficient to carry the case to a jury; and hence there was error in making the rule for judgment absolute, etc.
Inasmuch as the case goes back for trial, further discussion of the questions involved in the defense that is interposed is neither necessary nor desirable.
Judgment reversed and record remitted with a procedendo.
Reference
- Full Case Name
- Merchants National Bank v. James W. Eckels
- Cited By
- 1 case
- Status
- Published
- Syllabus
- Affidavit of defense—Promissory note—Bank—Corporation. Iu an action upon a promissory note by a bank, an affidavit of defense is sufficient which avers that “ the defendant was employed in the preliminary organization and promotion of the bank, and in that employment did prepare all the papers incident to the incorporation of the same and did secure the charter therefor, and did prepare the constitution 'and bylaws for said bank, and fully complete the permanent organization thereof by securing subscribers to the capital stock, preparing and providing a place of business, preparing leases, purchasing necessary equipment and furniture, advising and counseling from time to time as to matters of interest to the plaintiff from the time of the organization of said bank, which said services remained unpaid at the time of the institution of this suit and for which a set-off is asked against the plaintiff’s claim,” and that “the said services, the value of which- is asked to be set off against the demand of the plaintiff in this suit, were all rendered at the instance and request of a majority of the board of directors of said Merchants Na tional Bank, plaintiff, and upon the implied promise of a majority of said directors, and with the understanding that the defendant should be paid for said services whatever they were reasonably worth.”