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Smith v. White

Decided: December 12, 1940.

ANDREW SMITH, PLAINTIFF-RESPONDENT,
v.
HUGH M. WHITE, EXECUTOR OF THE ESTATE OF JAMES GEORGE, DECEASED, DEFENDANTS-APPELLANT



On appeal from the Supreme Court.

For the plaintiff-respondent, Platoff & Platoff (John N. Platoff, of counsel).

For the defendant-appellant, Richard Doherty.

Porter

The opinion of the court was delivered by

PORTER, J. This appeal is from a judgment entered in the Supreme Court in favor of Andrew Smith, plaintiff-respondent, against Hugh M. White, executor of the estate of James George, deceased, defendant-appellant, in the sum of $5,000.

The action was brought by Andrew Smith and by his wife, Jennie Smith. There were three counts in the complaint. He alone is the plaintiff in the first and second counts. He joined her in the third count. Judgment was entered on the first and second counts only so Jennie Smith is not a party to this appeal and we are not concerned with the third count.

The first and second counts are based on written agreements made by James George, the defendant-appellant's testator, whereby he agreed to purchase for Andrew Smith the premises occupied by the Smiths, and with whom he was living, in consideration of the care and kindness shown him by Andrew Smith and Jennie Smith during the time he had been living with them and a further consideration that he continue to live with them and be supported by them and furnished with everything necessary for his sustenance and with medical attention for and during the remainder of his life. The value of the premises was alleged to be $5,000.

The summons and complaint which were served personally on the defendant-appellant had endorsed thereon a demand for an affidavit of merits. Upon the failure of the defendant to file such affidavit a default judgment was entered.

Thereafter the defendant-appellant obtained from Chief Justice Brogan a rule to show cause why the judgment should not be set aside and why the defendant-appellant should not be allowed to plead to the complaint. Depositions were taken on behalf of both parties and submitted to the court. The application to open the judgment was denied on the ground that the proofs failed to show any defense on the merits and directed the assessment of damages. Same were assessed by a jury before a Circuit Court judge.

We conclude that the court was right that the proofs failed to show any defense. It appears that the attorney who drew the agreements says that he was told by the deceased that Smith had threatened to put him out of the house unless he

agreed to buy him the house, that he was instructed by the deceased to draw up the agreements but not to deliver them. He did thereupon draw the agreements and they were executed by the parties thereto in his presence.

The defenses which are sought to be interposed are that the contract was made by the deceased under duress and for that reason is invalid; that payment for services having been made the contracts lacked consideration. Under the proofs the defense of payment and lack of consideration are without any substance. Nor ...


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