Beaver Falls Planing Mill Co. v. Whiteside , 54 Pa. Super. 475 ( 1913 )

Pee, Curiam,

This was an action of assumpsit on a negotiable promissory note for $300, given by the defendant to the plaintiff on April 11, 1910, and payable sixty days after date.

One of the allegations of the affidavit of defense is that the note “was given as an accommodation to the plaintiff, before all the material which was being supplied for the defendant by the plaintiff had been delivered to the said defendant.” This allegation is defective in that it leaves wholly to inference that the note was given for material which the plaintiff was to furnish, and, even if that be inferred, the affidavit is further defective in not setting forth the kind, quantity, or value of the material to be furnished, and in not, alleging that all the material had not been furnished at the time the note became due.

The other allegation of the affidavit is that “the plaintiff is indebted to the defendant in the sum of $200 paid to the said plaintiff on May 18, 1908, which sum the plaintiff neglected to give the defendant credit for, and which is still owing by the plaintiff to the defendant.” Obviously, this is not a good averment of a set-off based on an independent demand for money loaned. A set-off alleged in an affidavit of defense must, in order to be availing, be stated with precision, and the court must be left in no doubt as to its source and character. “What is required in an affidavit of defense is a statement of facts from which the court can derive its own conclusions:” Bordentown Banking Company v. Restein, 214 Pa. 331. The averment that the plaintiff is indebted to the defendant in the amount of the payment is a mere conclusion of law, which, in the absence of allegation of facts from which such conclusion arises, is insufficient in an affidavit of defense. Nor can the above-quoted clause of the affidavit be treated as an averment that the payment was on account of the note, for it was made nearly two years before the note was given. Whether it had any connection with the transaction resulting in the giving of the note, and whether by reason of the payment any valid defense or right of set-off to the note accrued to the defendant, are matters left to conjecture. And the uncertainty is rendered greater when the vague and ambiguous averments we have noticed are read in connection with the defendant’s admission at the beginning of his affidavit, “that he owes the sum of $300, on the note mentioned in the plaintiff’s statement of .claim, but alleges,” etc. This would not be inconsistent with a subsequent averment of set-off if such had been explicitly made, but it requires undue exercise of ingenuity to reconcile it with the contention that the note, or the debt for which it was given, was reduced by a payment made in 1908.

The appellant’s contention that the rule of court requiring the plaintiff, upon entering rule for judgment for want of a sufficient affidavit of defense, to specify in writing wherein the affidavit is insufficient, was not complied with, is' not sustained. The plaintiff complied with the rule, as shown by the files sent up with the record, by filing a written motion for judgment and assigning as one of the reasons therefor that the affidavit was “vague and uncertain in its terms.” As shown by the learned judge’s opinion, this was the ground upon which he adjudged the affidavit insufficient, and in that conclusion we concur.

The judgment is affirmed.