Yearsley v. Glaser

Pee Gueiam, Where the facts set forth in an affidavit of defense, if they exist, are such as must be within the personal knowledge of the defendant, it is reasonable to require that they be averred positively. And if they are so averred, the omission of the usual formula as to information and belief does not render the affidavit defective: Eyre v. Yohe, 67 Pa. 477; Moeck v. Littell, 82 Pa. 354; Newbold v. Pennock, 154 Pa. 591; Wolf v. Jacobs, 187 Pa. 260; Andrews v. Packing Co., 206 Pa. 144 370; nor, on the other hand, will the concluding of such an affidavit with the averment that “ all of these facts he believes to be true, and expects to be able to prove on the trial of the case” have that effect. Viewing this affidavit as a whole it plainly and unequivocally shows that it is not based upon information but upon personal knowledge of dealings between him and the plaintiff, and while the averment of belief might have been omitted the inclusion of it certainly did not impair the effect of the preceding averments. If the defense were simply that some of the charges in the book account which plaintiff declared upon were excessive, the objection that the affidavit ought to specify the items wordd be well founded. But the defense is not simply that they were excessive, but that when the plaintiff presented his bill the defendant objected to it for that reason, and also claimed a deduction of a certain sum for damages done by the plaintiff’s workmen, and that thereupon a dispute arose between the parties which resulted in the plaintiff’s admitting the incorrectness of the charges, and in an agreement between them as to the amount due, pursuant to .which the sum thus agreed upon was paid by the defendant, and accepted by the plaintiff in full accord and satisfaction of the claim. In such a case a specification of the items in dispute was unnecessary. “ An affidavit of defense should set forth fully and fairly, facts sufficient to show prima facie, a good defense, and if it fails to do so, either from omission of essential facts, or manifest evasiveness in the mode of statement, it will he insufficient to prevent judgment. But if not deficient in either of these respects, and on its face fairly setting forth a prima facie defense, it is not to be subjected to close technical examination as if it was a special plea demurred to. Its office is to prevent a summary judgment and for that purpose a showing of a defense, with certainty to a common intent is sufficient: ” Andrews v. Blue Ridge Packing Co., 206 Pa. 370. Tested by this rule, the affidavit of defense as supplemented by the second affidavit was sufficient. The appeal is dismissed at the cost of the appellant without prejudice.