The affidavit of defense avers explicitly and positively that “ the moneys in the plaintiff’s statement of claim mentioned as having been loaned by the said plaintiff to the said defendant were not the moneys of the plaintiff, but were the proceeds of certificates placed in the hands of said plaintiff by Reese Carpenter and others in trust to sell and apply the proceeds to the purposes of the defendant.” It is true that the affidavit is weakened somewhat by the concluding averment that deponent “is informed and believes and expects to prove” the said matters, which was unnecessary where the first part was stated positively as of his own knowledge. The supplemental affidavit enlarges the recital of facts and perhaps gives ground to infer that the whole story is not yet before the court. But in the face of the positive averment above quoted that the •moneys sued for by plaintiff were not his own but were paid over by him as agent or trustee for the benefit of defendant, the court could not safely give judgment. The case is one for fuller development of the facts before a jury.
Judgment affirmed.