Willard v. Reed

Opinion, Me. Justice Sterrett : The averments contained in the statement of claim, in connection with the contract of June 7, 1883, appended to and made part thereof, present a clear prima facie case in favor of plaintiff below. Neither the averments of fact, nor the contract to which they relate, are traversed or denied by defendants’ affidavit, nor does it contain any averment of fact, by way of confession and avoidance, that can be regarded as a substantial defence to the claim or any part thereof. For reasons given in his opinion, the learned president of the Common Pleas was therefore right in entering judgment for want of a sufficient affidavit of defence. [8] The averment that on August 19, 1883, Charles M. Reed, one of the defendants, purchased the entire interest of the plaintiff “ in the Erie Dispatch printing, publishing, binding, and newspaper establishment,” including the lease of the building referred to in the contract or agreement of June 7, 1883, and that the sum paid therefor “ was in' full payment of any claim that might thereafter accrue to said plaintiff under said agreement upon which this suit is brought,” is too vague and uncertain. We are not informed whether the alleged contract of purchase was in .writing or not. ' If it was in writing, as presumably an important purchase, involving the payment of nearly $34,000, would be, a copy of the contract or bill of sale should have been appended to the affidavit of defence ; if not in,writing, the terms of the verbal contract should have been stated with such particularity that the court might have had an opportunity of judging for itself whether the construction claimed by defendants was warranted or not. The averment that the purchase money paid for the printing establishment, etc., “ was in full payment of any claim that might thereafter accrue to said plaintiff under said agreement upon which this suit is brought,” is not supported, as it should be, by a copy of the alleged contract of purchase, or a statement of the terms thereof. The defendants have undertaken to state their own conclusion as to the effect of the alleged purchase, without furnishing us with the facts from which that conclusion is drawn. There is nothing else in the affidavit of defence that requires special notice. Judgment affirmed.