Punxsutawney Iron Co. v. Fort Pitt Malleable & Grey Iron Co. , 216 Pa. 432 ( 1907 )

Opinion by

Mr. Justice Elkin,

Judgment having been entered in the court below for want of a sufficient affidavit of defense this appeal was taken for the purpose of testing the correctness of that ruling. The plaintiff company relies on a contract in writing, for the sale and delivery to the defendant, at different times, a certain amount of pig iron upon the terms specified in said agreement. There was partial delivery and payment in full for the amount so delivered. The defendant, alleging a cancellation of the contract, refused to take the balance of the pig iron to be delivered according to the terms of the contract. This action was brought to recover damages for the alleged breach on the ground that there had been no authorized cancellation of the contract. The original and supplemental affidavits of defense aver a cancellation and set out in «detail the time, place and manner when and where made. The averment is that the cancellation of the contract was made through the authorized agent of the plaintiff. The court below did not state any reason for holding the affidavits of defense to be insufficient, but the learned counsel for appellee rely on Weld v. Barker, 153 Pa. 465; and Newbold v. Pennock, 154 Pa. 591, to support their contention that the averment of the agency of Rogers, Brown & Company and their authority to cancel the contract did not meet the legal requirements in such cases. In the latter case it was said that if the affiant cannot state the facts upon which he relies to defeat a recovery, of his own knowledge, that it is the best legal form to say that he “ is informed and believes and expects to be able to prove ” the facts at the trial of the cause. It was further suggested that the defendant or his counsel who departed from this approved form and undertook to establish another which he may think is a full equivalent, does so at his own risk. It, however, was not decided in that or any other case that it was an unbending requirement to use the words “is informed, believes and expects to be able to prove,” in an affidavit of defense, when affiant cannot state the facts of his own knowledge, although it is always wise to follow the approved form. In the present case the affiant uses the words “ believes and says ” in averring the agency and then gives in detail the facts and circumstances relating to the course of dealing between the parties through the alleged agent, specifically stating that the agent had the authority to cancel the contract, and did cancel it and concluded with the averment that all of the facts set out in the affidavit are “ true and correct.” This is sufficient to put the parties on their proof. It may be that upon a trial of the cause when the evidence has been produced it would be the duty of the court to say as a matter of law that sufficient authority had not been shown in the alleged agent to cancel the contract, but that question cannot arise at this stage of the proceeding.

Judgment reversed with a procedendo.