Markley v. Stevens

Mr. Justice Mergur delivered the opinion of the court, May 7th, 1879. In this case judgment was entered against the plaintiff in error, for want of a sufficient affidavit of defence. The validity of the debt claimed by the defendant in error was not denied;. but the defence is set-off arising out of a separate transaction. The question then is, whether the affidavit, with reasonable certainty, avers facts that would establish a valid claim against the defendant in error ? Substantially it avers that the affiant purchased of the defendant in error a drug store, under a guarantee that there was at the time of sale at .least $8000 worth of drugs, medicines, &c, therein. That immediately, on taking possession he had a careful inventory taken of the contents, and found the value of the whole to be $4798.73. That he paid the $8000 — $5000 thereof before he took possession of the store. He therefore claimed the defendant in error was indebted to him in that transaction, in a sum exceeding $3000. It will thus be observed that there is an entire omission to state the time when the $3000 were paid. The clear inference is, that they were not paid before possession was taken, and it is left to conjecture to determine whether they were paid before or after the taking of the inventory was completed. If paid before, it might constitute a valid claim. If voluntarily paid afterwards and with knowledge of all the facts averred, no fraud being alleged, it could not be recovered back: Keener v. Bank, 2 Barr 237; Age v. Koentz, 3 Id. 109; Natcher v. Natcher, 11 Wright 496; Real Estate Saving Institution v. Linder, 24 P. F. Smith 371. It is true, an affidavit is sufficient which avers with reasonable precision and distictness, and with certainty to a common intent, facts which will constitute a defence. A reasonable intendment should be given to the language used for the purpose of sustaining the affidavit. It is not, however, sufficient to designedly and unnecessarily use language intended to create the presumption of a fact, which, if it actually existed, would readily and naturally have been expressly averred. The affidavit in the present case expressly avers that $5000 were paid before possession was taken; but studiously omits to state when the remaining $3000 were paid. It cannot be claimed that this omission occurred through ignorance of the time of its payment. In view of the minuteness with which the other facts are [282] stated, and the known importance of the time when this payment was made, the omission to state that it was before the inventory was taken, or before the facts were fully known to the affiant, creates the presumption that such was not the fact. It is to say the least, evasive, inasmuch as no just cause appears for the absence of an express and distinct statement of the time. The reasonable conclusion, therefore, is that the time of payment was stated as favorably for the affiant as the facts would warrant. As then it was necessary to aver facts, which, if proved, would sustain the claim set up, it is evident that this affidavit failed so to do with reasonable precision and certainty, and the learned judge was right in ordering judgment to be entered. Judgment affirmed.