Barker v. Fairchild

Opinion by Mr. Justice Fell, It is alleged in the statement of claim filed that “the plaintiff on the 31st of October, 1891, sold and delivered to the defendant certain goods and merchandise as follows, and the following is a copy of the book entry thereof: “ Oct. 31st, 1891, 23908 lbs. onions @ 80c. $189.65.” The affidavit and supplemental affidavit of defense contain averments that the plaintiff did not sell and deliver to the defendants or either of them or to the firm of Fairchild, Grace & Co., the merchandise mentioned on the day named, and that neither the defendants nor the firm received the said merchandise or any portion of it at any price on the said date or at any subsequent time. The caution with which both parties to the action have avoided entering into the details of the transaction suggests that on each side something material has been kept in the background, and makes applicable the remark of Mitchell, J., in the opinion in Fritz v. Hathaway, 135 Pa. 280: “It is not always possible to determine whether an affidavit of defense is skillfully drawn to suggest a defense without really swearing to it, or on the other hand whether the statement is with equal skill so worded as to avoid a defense.” The copy of the book account adds nothing to the statement, as it does not show a charge against any one, and the plaintiff’s case rests upon the allegation of a sale and deliveiy of merchandise on a day fixed. These averments are squarely met by the affidavit, and the only suggestion of evasion arises from the fact that the denial is so exact and literal. An affidavit of defense is sufficient which denies the grounds of liability averred in the statement and those which arise by implication from the averments made. While the construction of an affidavit should be in favor of the plaintiff and against the party making it, a defendant is under no duty to deny a liability not fairly arising [249] from the statement. The defendants deny a sale and delivery of the goods on the day fixed for both in the statement, and their delivery at any subsequent date. They were not bound to make further denial. -If the sale was on some other date the defendants were not liable under the statement filed. At a trial no recovery could be had against them without an amendment, and to permit one here with the record in its present state would subject them to the peril of another action for the price of the same goods. There maybe a fair presumption that in the course of business the delivery was on a date following the sale, but this is expressly denied, and .there is no presumption that the delivery was before the sale. The affidavit of defense, while not full, is quite as full as the statement of claim, and squarely meets all its allegations and all inferences fairly to be drawn from it which impose liability. The judgment is i'eversed with a procedendo.