Andrews v. Blue Ridge Packing Co. , 206 Pa. 370 ( 1903 )

Opinion by

Mr. Justice Mitchell,

An affidavit of defense should set forth fully and fairly, facts sufficient to show prima facie, a good defense, and if it fails to do so, either from omission of essential facts, or manifest evasiveness in the mode of statement, it will be insufficient to prevent judgment. But if not deficient in either o|. these respects, and on its face fairly setting forth a prima facie defense, it is not to be subjected to close technical examination as if it was a special plea demurred to. Its office is to prevent a summary judgment and for that purpose a showing of a defense, with certainty to a common intent, is sufficient.

Tested by this standard the first affidavit of defense was sufficient. It was made by the business manager of the defendant in positive terms. As such officer he must be presumed to be acquainted with the facts and as he took the responsibility of swearing positively as of his own knowledge, it was unnecessary for him to set forth his information and belief: Newbold v. Pennock, 154 Pa. 591; Wolf v. Jacobs, 187 Pa. 260.

The affidavit set up a defense to the whole of plaintiff’s claim, arising from a set-off in the same transaction. The defense in substance is that plaintiff’s claim is for money due on certain promissory notes given as memoranda for advancements by plaintiff to defendant on a contract under which the plaintiff was to take and sell on commission the entire product of defendant’s fruit packing operations ; that plaintiff had refused to take the whole product, whereby part of it was left over the season, to defendant’s loss, that plaintiff had not accounted and given credit for the whole of the goods actually taken, had overcharged commissions on the part sold and accounted for; and that the plaintiff upon these transactions was indebted to the defendant in a greater sum than the amount of the notes sued upon.

If made out as to the facts this was a good defense to the whole claim. So far as it rested on the contract the court having the latter before it, could look into the respective obligations of the parties, but as to the failure to account for goods sold, and the overcharge in regard to commissions, the result could only be shown by testimony as to facts, and a critical examination of the accounts which can only be had at a trial.

The supplemental affidavits though they complicate the statement of facts somewhat do not materially vary the defense, and as the original was sufficient they were unnecessary. If the insufficiency of an affidavit is manifestly in the substance of a defense, or if evasiveness is patent in the manner of statement, it is usual and proper to give judgment, but otherwise a supplemental affidavit is allowable and is usually allowed.

The origin of the affidavit of defense law was in an agreement of the Philadelphia Bar in 1795 (see note by Mr. W. W. Carr to Detmold v. Gate Vein Coal Co., 3 Weekly Notes Cases, 567), subsequently enforced by rule of court, the validity of which was sustained in Vanatta v. Anderson, 3 Binn. 417. The affidavit under this rule however was only that to 'the best of defendant’s knowledge and belief there was a just and good defense. But under the act of 1835 in relation to the district court of Philadelphia, it was required that the affidavit should state “ the nature and character” of the defense. Under this act the district court held that to enable the court to judge of the nature and character of the defense, the affidavit must set forth the facts. The question then at once arose as to the sufficiency of the facts stated to constitute a good defense and the practice of granting judgments for want of a sufficient affidavit rested for half a century on “ the uncontrovertible judicial deduction, that an insufficient affidavit was legally no affidavit at all: ” Stedman v. Poterie, 139 Pa. 100. In Walker v. Morgan, 2 Weekly Notes of Cases, 173, Williams, J., refers to the fact that no act of assembly had given the courts of Allegheny county authority to enter judgment for want of a sufficient affidavit of defense, and there was no general statute giving express sanction to such judgments until the procedure act of 1887. Long before that however the practice had become general and was established beyond question. As a corollary the practice was equally well established. to allow a supplement affidavit “ if the court deem the defense to be probably good but defectively stated: ” 1 Troubat & Haly, sec. 423. This was done in the interest of justice, and the same reasons that move the court to allow a supplemental affidavit may move it to allow a second or third supplemental, if it still appears probable that the defense is good and the defect merely in the mode of statement. The extent of the indulgence is largely in the discretion of the court.

Order affirmed.