
    United Security Bond & Mortgage Co. v. Steinfeld et al., Appellants.
    
      Argued December 4, 1930.
    Before Frazer, C. J., Walling, Simpson, Kephart, Sadler, Schaffer and Maxey, JJ.
    
      Thomas F. Mount, with him Joseph W. Henderson, of Rawle & Henderson, for appellant.
    January 5, 1931:
   Per Curiam,

The appeal before us is from the discharge by the court below of a rule for judgment for want of a sufficient reply to new matter filed by defendant in addition to its affidavit of defense.

The action is assumpsit on a surety bond executed by Fred Steinfeld, principal, and the 2Etna Casualty and Surety Company as surety, guaranteeing the erection of fifty-three dwelling houses, with garages, etc., on which plaintiff claims to hold, for a good and valuable consideration paid by it to Steinfeld, second mortgages aggregating $106,000. Steinfeld defaulted in the erection of the buildings. The surety company in its affidavit of defense and “new matter” filed supplemental thereto, denies that plaintiff paid good or valuable consideration for tbe mortgages and avers fraud in securing tbe bond.

As said in Colonial Security Co. v. Levy et al. (No. 2), tbe preceding case, .filed simultaneously herewith, unless tbe record shows facts “clear and free from doubt,” this court will sustain the refusal of summary judgment. Tbe whole record of this case is one of averments and denials which can only be determined after full development at trial, consequently the court below was correct in so deciding.

The order of the court below is affirmed.  