Hottenstein v. Johnson

Opinion by Henderson, J., The plaintiff’s action is founded on a check drawn by the defendant to the plaintiff’s order a copy of which check is set forth in the statement of claim. The error assigned is to the action of the court in making absolute a rule for judgment for want of a sufficient affidavit of defense. The [565] first proposition presented by the appellant is that the statement of claim is defective and insufficient. The procedure Act of May 25, 1887, P. L. 27, requires that the declaration “shall consist of a concise statement of the plaintiff’s demand” and that in the action of assumpsit it shall be replied to by affidavit. The plaintiff having filed his statement one of the things to be considered by the defendant when called upon to reply under oath was the sufficiency of the statement and if it was deemed insufficient the defendant should have raised the objection in the nature of a demurrer in the reply filed thereto. This would have given the plaintiff notice of the objection to the statement and would have enabled the court to determine its sufficiency at the threshold of the litigation. The objection was not made in the affidavit of defense and it would be unjust to the court below and the plaintiff to consider that question on this appeal. Having entered a general defense on the merits of the case it is too late now for the first time to object to the form of the statement: Heller v. Royal Ins. Co., 151 Pa. 101. As to the sufficiency of the affidavit of defense it must be said that the greater part of it is vague, evasive and wholly insufficient. It contains one averment, however, which we think entitles the defendant to be’ heard by a jury. The statement after setting forth the fact of the presentation of the check by the plaintiff to the bank on which it was drawn and the refusal of the bank to pay because payment thereon had been stopped declares that “the said defendant forwarded the said check to the plaintiff with directions that he should pay the proceeds thereof to a Mr. Hain. The plaintiff avers that immediately upon the receipt of said check he did pay to the said Hain as requested the sum of $280, whereupon the said defendant became liable to pay to the said plaintiff the amount of said check” etc. The consideration for the check is thus set up and the request by the defendant to the plaintiff to pay the amount of the check to Hain and the payment of that amount to him by the plaintiff become material [566] facts in the case. If the check was given to secure the plaintiff for the payment of the sum named to Hain and the amount was not so paid the plaintiff would not have a right of action against the defendant so far as the statement discloses a cause of action. To this averment of the declaration the defendant makes reply in the affidavit that he did not make any such request to the plaintiff as is set forth in the declaration and he denies that the plaintiff expended any money on his account as alleged in the statement. This, we think, is a sufficient denial that the defendant requested the plaintiff to pay out money on his account to Hain or that any money was so paid out by the plaintiff. Criticism is made by the learned counsel for the appellee of the use of the word “such” in connection with the request of the plaintiff and of the use of the word “expended” and our attention is called to the probability that the defendant used these words evasively, but this involves too great a refinement of construction when applied to an affidavit of defense. Giving to the whole paragraph of the affidavit the plain and ordinary significance which its language suggests it is a denial of the existence of the consideration on which the plaintiff rests his right to recover and as the plaintiff’s claim is based wholly on the fact that he paid out the amount stated in the check at the request and by the direction of the defendant we feel constrained to hold that this part of the affidavit is sufficient to put the plaintiff on proof. The judgment is therefore reversed and the record remitted with a procedendo.