Close v. Hancock

Opinion by Rice, P. J., The defendant’s affidavit of defense was filed on February 20. It was clearly insufficient and a rule was entered for judgment. On March 2, the defendant was granted leave to file a supplemental affidavit, which he did on March 6. It is stated in the paper-boobs — although the record does not show it — that at the argument, after this affidavit had been filed, the court deeming it defective, granted the defendant leave to file a second supplemental affidavit. It is stated that this leave was granted on March 21. On the following Saturday (March 28) the second supplemental affidavit not having then been filed the court entered judgment. We see no error in this. The original rule was pending and had been argued. It was not necessary to enter a new rule, nor to give further notice: Com. v. Snyder, 1 Pa. Superior Ct. 286. It was the defendant’s duty to file his second supplemental affidavit within a reasonable time after leave was granted. Failing to do so the court was perfectly justified in finally disposing of the rule and entering judgment. In his first and second affidavits the defendant sets up as an offset to the plaintiff’s demand a cross demand for damages growing out of the plaintiff’s breach of a contract to build a block of houses for the defendant. He alleges in general terms that the plaintiff abandoned the contract before completion, and that it would cost at least 1910 to complete the houses according to the contract; also that he is entitled to the additional sum of $750 as liquidated damages under a provision of the contract that the plaintiff should pay $3.00 for each day that the houses remained uncompleted after June 29, 1895. Affidavits of defense are uniformly construed most strongly [211] against the defendant, for it is reasonable to suppose that he will state his case as favorably for himself as the facts will permit. A deduction or set-off, alleged in an affidavit of defense, must, in order to be of any avail, be stated with precision and exactness as to the amount, and the court must be left in no doubt as to its source and character, so as to be able to judge of the propriety of its allowance against the plaintiff’s claim: Endlich on Affidavits of Defense, sec. 510. There is an additional, reason, which is that the plaintiff is entitled to know with reasonable certainty what he will be compelled to meet on the trial, of the case. While an affidavit of defense need not have all the particularity and technicality which are necessary in a special plea, yet it ought to set out the defense so that the plaintiff may know, with some degree of certainty, what will be interposed to defeat his claim: McCracken v. First Ref’d Congregation, 111 Pa. 106. Since the act of May 25, 1887, P. L. 271, the completeness and accuracy required in the plaintiff’s' statement and the defendant’s affidavit are substantially the same: Fritz v. Hathaway, 135 Pa. 274. As our Brother Smith well said in Hutton v. McLaughlin, 1 Pa. Superior Ct. 642 : “and one evident purpose of that statute is to secure full and concise statements of the material facts relied upon, so that each party may know with reasonable certainty the mature and character of the other’s claim and contention relative to the subject-matter of the controversy.” See also Markley v. Stevens, 89 Pa. 279; Louchheim v. Becker, 3 W. N. C. 449; McBrier v. Marshall, 126 Pa. 390; Bakes v. Reese, 150 Pa. 44; Terriberry v. Broude, 173 Pa. 48. Where-, a defendant sets up a breach of an independent contract as an offset, he should, not only attach a copy of the contract, if it be in writing, and allége a breach and the amount of damages, but should also specify with precision in what the breach consists. The affidavits before us are defective in this latter particular; they do not show when the plaintiff abandoned work on the contract nor in what particular it remained unperformed. They are also defective in not stating the dates of the payments referred to therein. The plaintiff was entitled to a specific statement of the particulars in which the defendant claimed the houses to be uncompleted; for without it, he would be compelled to come to trial prepared to prove that every door was hung and every nail was driven. The [212] enforcement of these plain rules imposes no hardship on the defendant. The court gave him full opportunity to cure the obvious defects in his affidavits, and he cannot now complain if they are scrutinized with somewhat greater strictness than if he had not been afforded such opportunity. Failing to file a second supplemental affidavit within a reasonable time, the court had a right to presume that he either could not or did not wish to be more specific. We have examined all of the cases cited by the defendant and find nothing in them to conflict with the foregoing conclusions. The judgment is affirmed.