
    Wentz, Appellant, v. Pennsylvania Casualty Company.
    Practice, C. P. — Affidavit of defense — Sufficient averments— Corporations — Loan to be paid out of earnings — Affidavit averring no earnings.
    In an action on a written instrument which contained a recital that the plaintiff, a stockholder of the defendant company, had advanced money to the company under an agreement that the amount was to be repaid out of the first net earnings of the corporation before any dividends were declared or paid, where the statement alleges that the net earnings of the company have been more than sufficient to pay all obligations, with interest thereon, and that dividends have been declared and paid out of the net earnings, an affidavit of defense is sufficient which avers that since the date of the instrument on which suit is brought there have been no net earnings of the company sufficient to pay any part of plaintiff’s claim, and that there have been no dividends paid out of net earnings at any time.
    Argued Feb. 23,1914.
    Appeal, No. 256, Jan. T., 1913, by plaintiff, from order of C. P. Lackawanna Co., November Term, 1912, No. 741, discharging rule for judgment for want of sufficient affidavit of defense in case of J. S. "Wentz v. The Pennsylvania Casualty Company.
    Before Fell, C. J., Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Rule for judgment for want of sufficient affidavit of defense. Before Newcomb, J.
    The opinion of the Supreme Court states the case.
    The court discharged the rule for judgment. Plaintiff appealed.
    
      Error assigned was the order of the court.
    
      Albert L. Watson, with him W. W. Watson, and W. 8. Diehl, for appellant.
    
      Frank B. Stocker, for appellee.
    March 23, 1914:
   Per Curiam,

This appeal is from an order discharging a rule for judgment for want of a sufficient affidavit of defense. The action was on a written instrument which contained a recital that the plaintiff, a stockholder of the company defendant, had advanced money to it to be repaid out of the first net earnings of the company and a promise to pay the principal out of the first net earnings and before any dividends were declared or paid and to pay interest quarterly. It is alleged in the statement of claim that the net earnings of the company have been more than sufficient to pay the obligation with interest thereon and that dividends have been declared and paid out of the net earnings. It is averred in the affidavit of defense that there have not been net earnings of the company since the date of the instrument on which suit is brought, sufficient to pay any part of plaintiff’s claim and that there have been no dividends paid out of net earnings at any time. This was a distinct and specific denial of the allegation of the plaintiff on which his right to recover was based and it was sufficient to prevent judgment.

The order is affirmed.  