Opinion
November 18, 1931.
January 28, 1932.
Husband and wife — Contract for maintenance — Duress as a defense — Unsupported allegation — affidavit of defense — Insufficiency.
In an action of assumpsit on a written contract, the plaintiff alleged in her statement of claim that the defendant agreed to contribute to her a certain sum per week for the maintenance of their two small children and that for approximately six months prior to the institution of suit the defendant had failed to make such payments. The defendant in his affidavit of defense admitted that he executed the contract and that the payments had not been made for the six months period, but he alleged that he entered into the agreement because he was threatened with a criminal prosecution if he did not do so. The affidavit, however, did not contain a statement of the facts upon which he founded the alleged duress.
In such case a judgment entered for want of a sufficient affidavit of defense will be sustained.
Where duress is relied upon as a defense to an action of assumpsit based on a contract, the facts from which the conclusion of duress can be drawn must be alleged in the affidavit of defense.
Even if the defendant was informed that unless he agreed to support his children, his wife would institute proper proceedings for their support, that conduct, in the circumstances, would not constitute duress.
Appeal No. 245, October T., 1931, by defendant from judgment of C.P., Bucks County, May T., 1930, No. 53, in the case of Lulu Fretz Brunner v. Norman Scott Brunner.
Before TREXLER, P.J., LINN, GAWTHROP, CUNNINGHAM, BALDRIGE and STADTFELD, JJ. Affirmed.
Rule for judgment for want of a sufficient affidavit of defense in an action of assumpsit on a written contract. Before BOYER, J.
The facts are stated in the opinion of the Superior Court.
The court made absolute the rule. Defendant appealed.
Error assigned, among others, was the order of the court.
John L. DuBois, for appellant.
Webster S. Achey, for appellee.
Submitted November 18, 1931.
This appeal is from judgment for want of a sufficient affidavit of defense. The suit was by a wife against her husband for breach of a written contract to contribute to her $20 a week for the maintenance of their two small children. Defendant made the payments from the date of the agreement, January 12, 1929 to October 14, 1929. This suit is to recover for the period ending April 9, 1930. Judgment was properly entered; no defense is averred.
Defendant alleges that he "finally entered into an agreement [on which the suit is brought] because he was threatened with a criminal prosecution if he did not do so." From that averment, he argues that the agreement was signed under duress. When duress is relied on, the facts, from which the conclusion can be drawn, must be stated: Irwin et al. v. Weikel, 282 Pa. 259; even if he was informed that unless he agreed to support his children, his wife would institute proper proceedings for their support, that conduct, in the circumstances, would not constitute duress: Hamilton v. Lockhart, 158 Pa. 452.
He also contends that by a provision in the agreement, that if his "financial ability and circumstances should be reduced from his present financial condition, the court of quarter sessions of Bucks County shall determine the proper amount to be paid," he was constituted the judge to determine when he could cease paying because of his financial condition; of course there is nothing in that contention. By proceedings instituted April 14, he was taken into the quarter sessions and an order of $12 a week for the support of his children was made, and, the brief states, that he has since complied with the order; that is his duty.
Judgment affirmed.