Phillips v. Allen

Opinion by Rice, P. J., Assuming the truth of everything asserted in the affidavit of defense as to what the defendant claims to be his defense, it is, in substance, that a certain sum,in cash and two promissory notes of the defendant payable at future dates (which were paid at maturity) were accepted by the plaintiff in full settlement of the debt then due, amounting to a considerably larger sum. It is not alleged in the affidavit that the notes were so drawn as to be negotiable, and it is argued by the plaintiff’s counsel that the acceptance of a mere nonnegotiable written promise to pay part of an undisputed debt then due, in discharge of the debt, ought not to be regarded as more effectual for that purpose than the actual payment of such part, which, though accepted in full, is concededly not a good accord and satisfaction. It is further argued in support of the judgment that owing to certain other defects in the affidavit the question of the discharge of the debt by accord and satisfaction is not properly before the court for decision. If this position is well taken, it will be unnecessary to consider whether averment of negotiability of the promissory notes was essential in order to bring the case within the principle upon which Mechanics’ Bank v. Huston, 11 W. N. C. 389 was ruled. The affidavit was made by William K. Culin, who averred that he was the manager for the defendant, but did not say that he was manager at the time of the transactions referred to, nor that they were conducted by him or in his presence, nor that he had personal knowledge of them. The reason he gave for making the affidavit was, that the defendant, on March 21, the date of filing the affidavit, was in Jamaica, and would not return to [359] the city of Philadelphia for about five weeks; but the date of his departure is not stated, and the affiant gave no reason why the defendant did not or could not file the affidavit between March 8, when service of the summons, statement and rule to file affidavit of defense, was accepted on that date. The usual formula that the defendant has a true, just, legal and adequate defense to the whole of the plaintiff’s claim, of the following nature and character, is followed by a recital of certain facts which the affiant asserts that the defendant admits and avers, and the affidavit concludes as follows: “ All of which facts the defendant asserts to be true to the best of his knowledge, information and belief, and expects to be able to prove at the trial of this cause.” Where an affidavit of defense is made by a stranger to the action, it ought to show whether the facts are averred upon the personal knowledge of the affiant or upon information and belief. No set form of words can be prescribed for doing this; but surely the affiant’s personal knowledge of the facts claimed to constitute the defense in this case cannot be inferred with any degree of certainty from the fact that he was the defendant’s manager at the time the affidavit was made. It may be fairly inferred from the affidavit that the affiant had personal knowledge of what the defefidant asserted and claimed the facts to be, but not that he had personal knowledge of the facts so claimed. It stands on no higher plane than an affidavit specifically stating that he derived his knowledge or information of the facts from the defendant; and viewed in that light it is defective because it does not state his belief or his expectation of the ability of the defendant to prove them upon the trial. See Baum v. Union Surety & Guaranty Co., 19 Pa. Superior Ct. 23, which is directly in point, and Black v. Halstead, 39 Pa. 64, and Safety Banking and Trust Co. v. Conwell, 28 Pa. Superior Ct. 237. The rule is well settled that the affidavit of defense must be made by the defendant himself, or if there are special reasons why that cannot be done, they must be set forth so that the court may judge of their sufficiency: Mitchell on Motions and Rules (2d ed.), 104. “ The correct rule would seem to be that when a defendant puts in a stranger’s affidavit, it must show upon its face sufficient reason why it was not made by the de [360] fendant himself; that a real disability existed which prevented him from making it, and the circumstances giving rise to the disability : ” Griel v. Buckius, 114 Pa. 187; Citizens’ Natural Gas Co. v. Waynesburg Natural Gas Co., 210 Pa. 137 ; Taylor v. Sellers, 12 Pa. Superior Ct. 230. The affidavit under consideration does not come up to the requirements of this reasonable rule. Judgment affirmed.