Ryon v. Starr

Opinion by Mr. Justice Elkin, This court has held in Ashman v. Weigley, 148 Pa. 61, that the procedure act of 1887 made a material change in the affidavit of defense law. By the-terms of that statute the statement of claim takes the place of a common-law declaration, and in an action of assumpsit requires an affidavit to be filed to prevent judgment. The material averments of the statement of claim are to be taken as admitted wherein they are not specifically denied by the affidavit. In Odd Fellows Savings Bank v. Miller, 179 Pa. 412, it was held that an affidavit of defense was insufficient which was largely made up of irrelevant and immaterial matters contained in loose and evasive averments of fact. ' Where plaintiff’s claim depends upon written contracts and papers set out in the statement and the affidavit of defense raises no issue of fact by denying any part of the statement except the inferences from the face of the papers, it is a question of law for the court to decide upon the statement and affidavit : People’s Street Railway Company v. Spencer, 156 Pa. 85. In Penna. Railroad Company v. Midvale Steel Company, 201 Pa. 624, it was held that inasmuch as the statement of claim contained an exact copy of the accounts and all other data relied on to support it, while the affidavit of defense did not deny the correctness of the accounts and papers so set out, but on its face set up certain reasons for the delay, there was no issue of fact calling for the intervention of a' jury, and the sufficiency of the affidavit was for the court as a question of law. In the case at bar the statement of claim contains a copy of the original and supplemental contracts, and all other papers and accounts between the parties relating to the matter in dispute, while the affidavit of defense does not deny a single material averment therein. No issue of fact was raised by the affidavit calling for the intervention of a jury, and it was the .duty of the court to decide the question on the statement and [318] affidavit. The learned court below in an able and well-considered opinion, properly defined the rights and relations of the parties, but inadvertently committed the error of saying: “ The remaining part of plaintiff’s claim rests upon different grounds, and under the statement, and affidavit of defense will likely involve questions of fact that must be passed upon by a jury.” The questions of fact must be raised by the affidavit itself, and .nothing must be left to conjecture or inference: Bardsley v. Delp, 88 Pa. 420. The claim of set-off for damages is without merit and will not avail the appellee as a defense to this action. This branch of the case comes within the rule stated in Chain v. Hart, 140 Pa. 374. The affidavit of defense was clearly insufficient and the rule for judgment should have been made absolute. The decree or order awarding a procedendo as to the balance of the claim for which the affidavit of defense was deemed sufficient is reversed, the rule for judgment for want of a sufficient affidavit of defense is made absolute, and it is directed that judgment be entered for plaintiff in the court below for the balance shown to be due by the statement of claim, in accordance with this opinion.