Balph v. Rathburn Co.

BUTLER, District Judge. The plaintiff sued to recover four thousand two hundred and seventy dollars and forty-six cents, being a balance due for cement sold the defendant'. The latter filed [972] an affidavit of defense in which, after .claiming a credit for $1,091.83 paid on account, and $148.53 for bags returned, it is claimed to set off damages arising from the plaintiff’s failure, as alleged, to deliver such quality of cement as it undertook to do, — the damages exceeding the plaintiff’s demand. After specifying particularly how the damages arose the affidavit epitomizes as follows: “That defendants have been damaged by the wrongful acts of plaintiff, in fraudulently furnishing inferior cement as aforesaid; in the extra cost and expense occasioned defendants in talcing out and replacing broken floors in said Simpson Building, as aforesaid, in loss and expense occasioned by the repairs in said buildings, as aforesaid; in the loss of contracts, as aforesaid, and in the impairment of the value of said patent owned by defendants, as aforesaid, in the sum of 4,432 67/100 dollars.” The circuit court held the affidavit to be insufficient, under the law and practice here, and entered judgment .for the plaintiff, after allowing the credits claimed for payment and bags returned. The defendant appealed, and now assigns this act of the court as error. Is the affidavit insufficient? The law requires affidavits of defense to be so specific as to inform the plaintiff of the character of the defense he is required to meet, and to enable him to take judgment for such balance of his claim as is not covered by the defense set up. If the affidavit in the case before us had omitted the claim for damages on account of “loss of contracts” (which the plaintiff had hoped to obtain if its work on the one in hand should be successful) and on account of “impairment of the value of patents owned by the defendant,” and had ascribed the $4,432.67 damages to the other causes of loss specified, it would have been sufficient. A legitimate def ensewould thus have been presented, covering the plaintiff’s entire claim; and the plaintiff would have been sufficiently informed of its character. But these two alleged sources of damage, and grounds of defense, to which a part of the $4,432.67 of loss set up is ascribed, cannot be considered; if proved they would not constitute a defense. Neither argument nor authority is required to show that the alleged injury from loss of contracts, and prejudice to patents, could not be set up as a defense. The allegation rests on pure speculation; .and such loss if proved would be tooremote. The plaintiff could not foresee or contemplate it. What part of the $4,432.67 damages should be ascribed to the legitimate defense set out does not therefore appear. If it did and the amount fell short of the plaintiff’s claim, he might have taken judgment for the balance. It is thus seen that the affidavit is insufficient, and that the court was right in entering judgment. The judgment is therefore affirmed, with costs.