#### Ketcham *v.*Baxter, Appellant.

*Contracts*— Statements *of claim*— Affidavits *of defense*— Insuffi*cient averments.*

Where in an action on an agreement by defendant to pay to plaintiff a stipulated sum out of the first money coming into his hands belonging to a third person, which had been assigned by such third person to plaintiff, it appears from the statement of claim and affidavit of defense that defendant had negotiated a note of such third person and with the proceeds had paid a debt of his own returning the balance to the maker, and that he had failed *493to make any payment to plaintiff in accordance with the agreement, judgment for plaintiff for want of a sufficient affidavit of defense was properly entered.

Argued January 12, 1916.

Appeal, No. 235, Jan. T., 1915, by defendant, from order of C. P. No. 5, Philadelphia Co., June T., 1913, No. 3695, making absolute rule to show cause why judgment should not be entered for want of a sufficient affidavit of defense in case of O. W. Ketcham v. John Baxter.

Before Brown, C. J., Mestrezat, Stewart, Frazer and Walling, JJ.

Affirmed.

Rule to show cause why judgment should not be entered for want of a sufficient affidavit of defense.

The facts appear in the following opinion by the lower court:

The plaintiff claims upon an order and assignment in his favor, dated June 20, 1912, signed by Bernard Stern, which recites that in consideration of the delivery of building materials for an operation in which Stern was engaged, Stern assigned $1,561 to the plaintiff out of a fund to be realized from a mortgage about to be placed on the premises by defendant for Stern, or out of any funds in the hands of the defendant belonging to or to belong to Stern, and directed the defendant to pay to the plaintiff “out of the first moneys coming into his hands from the said mortgage or otherwise” $1,561, and charge the same to Stern’s account. The defendant accepted the order and agreed to pay the plaintiff $1,561 “out of the first moneys coming into my hands as recited.”

The statement avers that Stern delivered to the defendant a judgment note for $3,000, which defendant endorsed to Nellie Gallagher, receiving from her therefor $3,000 as the money of Stern, and instead of paying the amount assigned to plaintiff, paid it to Stern.

The affidavit of defense avers: “The moneys paid to Bernard Stern for the $3,000 note were out of the defendant’s own moneysthe money paid by him to Stern *494from July 20th to July 31, 1912, amounting to $1,565 as averred in the statement of claim, was money which the defendant hound himself, when he took the judgment note, to loan to Stern, and that he agreed to loan or secure a loan for Stern of $3,000, and accordingly loaned him $1,565.

It is also averred in the affidavit that the note was purchased or taken over by Nellie Gallagher “in part payment of the money then due by the defendant to the said Nellie Gallagher.”

From these averments it appears that the defendant received a judgment note for $3,000 signed by Stern, which he negotiated, and that it was purchased from defendant or taken over by Nellie Gallagher in liquidation of an indebtedness due by defendant to her, and that instead of receiving the cash from her, defendant was credited for the indebtedness due by him to her, and under his obligation to account to Stern for the proceeds of this note, actually paid him $1,565 upon dates subsequent to the acceptance by him of the order in suit.

The statement of claim alleges that defendant received $3,000 from Nellie Gallagher and, although defendant denies generally that he received any money from Nellie Gallagher as the money of Stern, there is no denial of the averment in the ninth paragraph of the statement of claim that defendant paid Stern $1,565 upon the dates specified, but on the contrary these payments are admitted. The relationship of the parties to this transaction is far from clear, although the defendant was afforded the fullest opportunity by obtaining leave to file two supplemental affidavits of defense, of which privilege he availed himself. The transaction apparently was one in which the judgment note executed and delivered by Stern to defendant was employed to raise money for Stern, instead of the mortgage mentioned in the assignment, which was first in contemplation. When, instead of demanding cash from Nellie Gallagher, defendant used the note to pay his individual indebted*495ness to her, lie became tbe purchaser of tbe note and liable to tbe plaintiff and Stern for tbe proceeds. He could not avoid tbe obligation of bis agreement to payout of tbe first money coming into bis bands by swearing that tbe money was never out of bis bands until be paid it to Stern.

Tbe affidavit of defense is not specific, it is evasive, and is not sufficient to prevent tbe entry of judgment.

Tbe court made tbe rule absolute. Defendant appealed.

*Error assigned*was tbe order of tbe court.

*A. ¡3. Ashhridge, Jr.,*for appellant.

*Gharles J. Sharkey,*with bim *Joseph Q-. Magee,*for appellee.

March 6, 1916:

Per Curiam,

This judgment is affirmed on tbe opinion of tbe learned court below mating tbe rule for it absolute.