Leach v. Keach

Woodward, J. The question relating to the reply, and the affidavit to it, determines the case, and therefore it is the principal one to which we will give attention. The defendant’s answer admits the contract, but pleads, among other things, that plaintiff, some years before, went to California, and, before leaving, wished defendant to rescind the contract, and deliver up the notes, offering to deliver up the obligation. He avers that it was fully and finally agreed between them, and they bound themselves, respectively, to deliver up the said papers, and annul the agreement; that the reason why this contract was not then actually carried into effect was, that the obligation Avas then in Lee county, while the parties were in Jefferson county ; and that plaintiff agreed to send the bond to defendant, and he was then to deliver the notes ; but the bond Avas never sent. The respondent alleges .that he knows of no one by whom he can prove this agreement beside the complainant himself, and therefore he makes oath to the answer, and calls for a reply under oath. The complainant demurred to this answer, and alleges, as the only cause, that it was without consideration, and therefore void. This being overruled, a reply was filed, which was SAvorn to by Lydia Leach, the wife of the complainant, under section 1748 of the Code. To show her means of information, and her ability to answer for the [235] party, she states that she is the wife of the complainant; that he is absent in California; that he left her his agent, and that she was well acquainted with his business before he left, and still is; that certain transactions are peculiarly within her knowledge, they having taken place since his leaving, and she states reasons why she believes she has knowledge of others. She replies that she verily believes the allegations in relation to the agreement to be untrue; and that, if such had existed, she can but believe that she would have known it; but does not claim any specific or certain knowledge upon this transaction. .The defendant objected to the sufficiency of this reply, for the reason that it does not show that the person making oath to it, has equal information with the complainant; that the affiant swears according to her belief,, whilst the party might, and should, answer by direct affirmation or negation; and that the response should come direct from-the petitioner, inasmuch as the matter rests peculiarly within his knowledge. The court overruled the objection, and admitted the reply, and there being no other proof, rendered a decree for petitioner. There are cases where attorneys or agents may make affidavits for another, in the loss important steps of a cause, without a very rigid inquiry into their means of knowledge;. but when this is undertaken upon the substance of the suit — upon a point on which the very rights of the parties depend— he should satisfy the mind that his means of information are full and adequate. In the present instance, the matter in question is, in its nature, and by the statement of it, supposed to have taken place between the parties personally, whilst the agent who makes the sworn denial, does not pretend any special information upon it, nor to any, save such as may be supposed to arise from a general knowledge of her husband’s affairs. This does not answer the requirement of the statute. It is not enough to enable her to verify the pleading in the place of the complainant himself. We are of [236] opinion that the court erred in rendering a decree on this reply, and it will be set aside. The only other point which need be touched upon, is the demurrer of complainant to the respondent’s answer. The only cause of demurrer being, that the agreement stated was without consideration, we think there was no error in overruling it. The desire of the complainant to have the contract discharged, and the mutual promises to deliver up the obligations held by them respectively, constituted a sufficient consideration on both sides. The decree of the district court is reversed, and the cause, is remanded for a reply as called for in the answer, and for other proceedings in accordance with this opinion.