Stage v. Smith , 41 Pa. Super. 273 ( 1909 )

Opinion by

Beaver, J.,

The plaintiff sought to recover from the defendant in this case the amount of a promissory note, dated March 2, 1903, payable ninety days after the date thereof. The defendant, in his affidavit of defense, admits the making of the note in suit, but avers that the year previous to its date, to wit, in July, 1902, he “sold to the plaintiff a one-half interest in the coal and other minerals covered by the contracts with Barmoy, Miller and Weaver & Burge, and the plaintiff agreed to pay to the defendant therefor at the price or sum of thirty dollars per acre for the whole, th&t is to say,- two thousand, seven hundred and seventy-five ($2,775) dollars for the one-half interest in the 185 acres.”

The defendant does not allege that he acquired title to the coal and other minerals covered by contracts with Barmoy, Miller and Weaver & Burge, nor does he specify in what manner the sale of the half interest in these lands was made to the plaintiff. If in writing, it was his duty to attach a copy of the agreement under which, as he alleges, the sale was made. In his failure to do so, it may be very fairly assumed that the sale was not in writing, otherwise a copy of the agreement would have been attached to his affidavit. If not in writing, the sale was void under the statute of frauds and perjuries. If we can assume that the sale was in writing, the affidavit is bad, because the copy of the writing is not attached. If we are authorized to assume, because of the absence of the copy of the agreement, that the sale was not in writing, then the sale was not binding upon the plaintiff and the set-off is not good. In either event, as we view the affidavit of defense, the court very properly entered judgment for want of a sufficient affidavit of defense.

The appellant cites, and seems to rely with great confidence upon, the case of Smith v. Stevenson, 190 Pa. 48. That case, it seems to us, is clearly distinguished from the present one, as is pointed out very clearly by the court below in its opinion making the .rule for judgment absolute.

In addition to the reasons set forth in that opinion, it may be further said that the Supreme Court, in the case cited, seems to rely particularly upon the fact that the defendant alleged performance of the terms of his agreement, Mr. Justice Green, who wrote the opinion, saying: “The proper inference from-the bare averment must be that it was a valid agreement, especially as it is followed by an allegation of performance of its terms by the defendants.” There being not only an allegation of defense to the amount of the plaintiff’s claim, but of a specific set-off for a much larger amount than that claimed by the plaintiff, in which the defendant asserts his right to a certificate for $1,775, there should be such a specific statement of the claim of the defendant as would warrant recovery in action by defendant against plaintiff. “An affidavit averring set-off must set forth with particularity and certainty all material circumstances connected with the alleged set-off: ” 1 P. & L. Dig. of Dec. 240.

It is unnecessary to recite the numerous authorities contained in the opinion of the court below, inasmuch as that opinion will doubtless be published in full in connection with the report of the case.

Judgment affirmed.