Terriberry v. Broude

Opinion by Mr. Justice Fell, Tliree questions are presented by this appeal. The first [52] relates to the sufficiency of the statement of claim, the second to the sufficiency of the affidavit of defense, and the third to the regularity of the proceedings after the entry of a rule on the plaintiff, a nonresident, for costs. It is averred in the statement that the defendants are indebted to the plaintiff in a sum named for goods sold and delivered upon an account which is attached, and which is a true and correct copy of the plaintiff’s book of original entry. This with the other averments makes a clear and concise statement of the cause of action. The copy of account filed shows a charge by plaintiff, manufacturer of mouldings, against the defendants, in which the date of sale, the special number and the amount of each item in feet and inches and the price per foot are set forth.. In the account special numbers are used to designate the articles sold. A number takes the place of a name and detailed description as to size, pattern, material and quality. The reason for this as a matter of business convenience is obvious, and is explained by the statement in the affidavit of defense that the orders were made from sample patterns. Such orders and charges are not unusual, and no point has been made that the entries are not intelligible and are not fully understood. Indeed, no objection to the statement is raised by the affidavit upon any ground. It is not alleged in the affidavit of defense that the goods for the price of which suit is brought were not ordered and received, nor that other goods sent without orders were not used without an offer to return them. The claim for set-off is founded upon the alleged breach of an agreement to fill orders. The statement as to its terms and as to the loss sustained is vague and uncertain in the extreme. The agreement set up is that the defendants were to be allowed a line of credit upon conditions named, but it is not stated that the conditions were complied with, nor that the orders which were not filled were not in excess of the credit to be given. There is no specification of items which go to make up the loss claimed, and nothing stated from which it can be computed. If all the averments were established by proof there would still be no means of ascertaining the amount. Under the rules of court the defendants were entitled to a rule for costs only upon filing a sufficient affidavit of defense. [53] While the rule was entered as a rule of course, its validity, depended upon the affidavit. The judgment of non pros was entered while the rule for judgment for want of a sufficient affidavit of defense was pending. The latter rule questioned the sufficiency of the affidavit and challenged the right to costs. It would have been more regular as a matter of practice if tbe plaintiff bad first moved tbe court to take off tbe judgment by default, and both rules could have been heard together. This in effect is what was done, but without tbe formal entry of a rule. One branch of tbe case depended upon tbe other, and when tbe affidavit was held to be insufficient tbe foundation of the rule for costs was gone, and tbe judgment fell. No substantial right was denied tbe defendants, and tbe record presents no ground for reversal. Tbe judgment is affirmed.