W. E. Heyser Lumber Co. v. Whiting Lumber Co.

Opinion by Henderson, J., This case comes up on an appeal from the judgment of [78] the court below entered for want of a sufficient affidavit of defense. The plaintiff’s action was brought to recover the price of a quantity of lumber sold and delivered to the defendant. The affidavit of defense admits the correctness of the plaintiff’s claim but sets up a counterclaim by way of set-off arising out of another sale of lumber by the plaintiff to the defendant which the latter alleged was inferior in quality and was only accepted' by it after the defendant .through its duly authorized agents orally agreed that if the defendant would keep the shipment and other shipments to be made under that contract and pay for the same the plaintiff would compensate the defendant for any depreciation in the lumber which might occur as a result of its greenness of which the defendant had complained. It is further averred in the affidavit that this lumber became subject to dry-rot because of improper seasoning and that the defendant sustained damage to the extent of $399.00 which amount it seeks to apply on the debt for which the suit was brought. The court held the affidavit to be insufficient because it omitted to state who the authorized agents were who were said to have acted for the plaintiff in making the agreement with respect to the lumber alleged to have been defective. It is an indispensable element in an affidavit of defense that it state with some degree of certainty what will be presented to defeat the plaintiff’s claim. It is filed for the purpose of giving information of a defense sufficient in law to prevent summary judgment. It is not required nor advisable that it exhibit the evidence on which the defense is to be supported but it should inform the plaintiff with reasonable precision and particularity of the facts relied on to defeat a recovery. The whole defense here is based on the allegation that a contract was made by some agents of the plaintiff with the defendant without disclosing the names of. the agents or so describing them that authority to enter into such contract might be inferred. The plaintiff is a corporation; it acts through its officers [79] and such agents as it may from time to time employ. Where it is averred that an agreement of the character set up by the defendant was entered into it is not unreasonable that the defendant name or describe the agents who thus acted for the plaintiff. The lumber about which complaint was made was sold by the plaintiff, received by the defendant and paid for. The collateral agreement set up was outside of the regular course of business and it was important to the plaintiff to know what agents acted for it in the transaction as claimed by the defendant. It is true the matter is presented by way of set-off but it is set-off in an affidavit of defense and the statement of the set-off should contain' such facts as would constitute a good defense if established. The general statement that this collateral agreement was made by agents of the company gives no such information of the identity of the agents or of time, place and circumstance as would enable the plaintiff to know what it was expected to meet at the trial. As corporations must act through representatives it is essential that such representatives be identified by the description of their offices or their particular connection with the corporation: McCracken v. First Reformed, Etc., Congregation, 111 Pa. 106; Folsom Real Estate Co. v. Esmark, 38 Pa. Superior Ct. 580. The facts underlying the case of Max Meadows Land and Improvement Co. v. Mendinall, 4 Pa. Superior Ct. 398, are very different from those presented in the case before us. A fraudulent combination was there set up involving the officers of the corporation and its agents. An extensive system of advertising by handbills and otherwise was engaged in and the fraudulent representations complained of were to a considerable extent set forth in these advertisements and handbills issued by the company. The affidavit of defense set up the fact that the company made the false representation by prospectus, handbills and advertisements as well as by its officers and agents, The charge of misconduct was thus brought home to the [80] corporation and its officers as well as to its agents. The officers were known and presumably could be produced. In view of the nature of the charge and the manner in which the fraudulent misrepresentations were made by the officers of the company and in further view of the fact that wide latitude is allowed in the presentation of evidence in a charge of fraud the affidavit was held sufficient ; but we do not regard it as an authority in support of the appellant’s position. The judgment is affirmed.