
    Heckman v. Schmeck, Appellant.
    
      Costs — Affidavit of defense — Part admitted to be due — Practice, C. P.— Rule of court. ,
    Where in an action for the price of mules sold and delivered where the defendant’s affidavit of defense avers “that said mules at the time of said sale were not worth more than about two hundred and fifty dollars, which sum he is willing and ready to pay, but no more, ” and at the trial a verdict is rendered for plaintiff in a sum less than $250, the plaintiff will not be liable for the costs under a rule of court which provides that “if no judgment shall have been entered and there be no recovery for more than is admitted to be due by the affidavit, plaintiff shall pay all the costs accruing in the case subsequent to the filing of said affidavit.” In such a case the affidavit does not admit any sum to be due within the meaning of the rule of court.
    Argued Nov. 12, 1907.
    Appeal, No. 253, Oct. T., 1906, by-defendants, from order of C. P. Berks Co., March T., 1904, No. 43, discharging rule to impose costs on plaintiff in case of Alexander Heckman v. J. E. Schmeck and William H. Riegel, executor of Elias Riegel, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule to impose costs on plaintiff.
    The facts are stated in the opinion of the Superior Court.
    The rule of court referred to in the opinion is as follows:
    Rule IV, sec. 5: Where the defense taken in the affidavit is to part only of the plaintiff’s demand, judgment shall upon praecipe of plaintiff forthwith be entered by the prothonotary for the amount admitted to be due; thereupon the sufficiency of the affidavit as to the residue of the plaintiff’s demand may be tested, and if it be found insufficient, or if, in the contrary event (in which case the cause may be proceeded in as to such residue), a recovery be had therefor or for any part thereof, a second judgment may be entered in said action; provided, that if no recovery be had thereon, the plaintiff shall pay all the costs accrued after the entry of judgment for the part admitted to be due; or, if no judgment shall have been entered and there be no recovery for more than is admitted to be due by the affidavit, plaintiff shall pay all the costs accruing in the cause subsequent to the filing of said affidavit.
    February 28, 1908:
    
      Error assigned was order discharging the rule.
    
      Isaac Hiester, with him Benj. 7. Shearer, for appellants,
    cited: Bank v. Walton & Co., 30 W. N. C. 47; Calkins v. Keoly, 15 Pa. C. C. Rep. 148; Jordan v. Kleinsmith, 5 Pa. Dist. Rep. 674; Dietrich v. Dietrich, 154 Pa. 92; Brennan’s Est., 65 Pa. 16.
    
      C. H. Ruhl, for appellee,
    cited: Ganor v. Hinrichs, 2 Pa. Superior Ct. 522; Maylin v. Root, 33 W. N. C. 76; Kuhnle v. Mc-Keever, 1 W. N. C. 19; Jordan v. Kleinsmith, 5 Pa. Dist. Rep. 674; Hamer v. Humphreys, 2 Miles, 28.
   Opinion by

Morrison, J.,

The plaintiff sued to recover on a promissory note and served the declaration and copy of note upon the defendants. The amount of the claim was $396, and it called for an affidavit of defense. The note was given for a pair of mules purchased from the plaintiff. Defendant J. E. Schmeck filed an affidavit of defense for himself in which he set forth his alleged defense and said: “That said mules at the time of said sale were not worth more than about $250, which sum he is ready and willing to pay, but no more.” ' It is upon this language that the questions raised by the assignments of error depend. No affidavit of defense was ever filed by or for defendant Elias Riegel. After the case had been put at issue by the defendants voluntarily entering their plea, within the time allowed for filing affidavits of defense, defendant Riegel died and his executor was substituted as a defendant. The case was tried in September, 1905, and the jury returned a verdict for $222.65 in favor of the plaintiff. On September 13, 1906, defendant Schmeck presented his petition averring, in substance, that he filed an affidavit of defense admitting to be due the sum of $250, and averred his willingness to pay said sum, but plaintiff refused to accept said amount and proceeded to trial, and on September 28,1905, a verdict for $222.65-was rendered, and on June 16, 1906, a new trial was refused; that plaintiff not having recovered as much as was admitted to be due, by the affidavit of defense, is liable for costs of the suit incurred after the filing of the affidavit - of defense. Upon this petition, the court granted a rule to show cause and after answer and supplemental answer filed, and argument, the learned court filed an opinion and with it a decree as follows: “November 24, 1906, the rule to show cause is discharged,” and judgment was entered against the defendants for costs. This action of the court on the petition is assigned for error.

In determining the question thus raised the learned court was called upon to construe one of its own rules and we see no error in the construction put upon the rule. A careful examination of the opinion of the learned judge below, and the arguments of counsel, and authorities cited, does not convince us that the record discloses reversible error.

The affidavit of defense made by Schmeck is not in terms made on behalf of both defendants. It was made and sworn to by Schmeck and only sets forth his defense. It did not plainly and candidly admit that the defendants owed the plaintiff $250. In our judgment, the averment bears the construction that Schmeck did not admit, owing $250, but that he was willing to pay that sum, and no more, to settle the claim. Moreover, the defendants, within the time allowed for filing affidavits of defense, voluntarily entered their plea, thus tendering an issue to the plaintiff as to his right to recover the whole claim or any part thereof. The plaintiff accepted this issue and went to trial. In addition to this, defendants did not concede, at the trial, that they owed the plaintiff $250, and interest, but made a defense on the merits and reduced the recovery to $222.65. At the trial Schmeck testified that the mules were only worth $197. This testimony is wholly inconsistent with his contention that he admitted in his affidavit of defense that-he owed the plaintiff $250. By his testimony he furnishes a method of interpreting what he meant by the language used in the affidavit of defense. If this affidavit, rightly construed, admits owing the plaintiff $250, then it is difficult to understand his testimony at the trial as a truthful statement. All of this convinces us that Schmeck did not mean to admit that he owed $250 on the note, and interest, but that he offered the amount of $250, and no more, as a settlement of the claim. If we are right in this construction, it is not a sufficient admission that defendants owed on the note $250 and interest. We think the opinion filed by the learned court below sufficiently vindicates his decision and that nothing more can be profitably said on the subject.

The assignments of error are dismissed and the judgment is affirmed.  