Steiner v. Bartlett

Opinion by

Wickham, J.,

The plaintiff in his statement of claim avers that the defendant, representing himself as his agent, obtained two flat boats, the property of the plaintiff, at the time in the custody of third parties for safe keeping, and disposed of the same “ without the knowledge, authority or consent of the said plaintiff, and has not yet rendered any account thereof to the said plaintiff, although requested so to do.”

The defendant, in his original and supplemental affidavits of defense which must be considered together, alleges that he was in fact the agent of the plaintiff, for‘the purpose of selling the boats, and that as such agent he sold them for the sum of $529 to one W. W. O’Neil, Jr., the said price to be paid by O’Neil to the plaintiff. In addition to the prior authority, thus set up, the defendant also avers, that after the sale was made he informed the plaintiff thereof and of its terms, and that the plaintiff expressed neither dissent nor dissatisfaction until O’Neil became insolvent.

The learned counsel for tbe plaintiff by an ingenious and somewhat refined course of reasoning, undertakes to show that the fact of the agency, its terms, etc., are not sufficiently set out in the affidavits of defense. We cannot agree with Mm. Reasonable certainty and particularity in setting forth the facts of the defense are enough, and both exist here. To require more, would take us back to the subtleties of special pleading. Showing that an affidavit of defense might be more clear, defiMte and particular does not always prove its insufficiency to prevent judgment. By these remarks, we do not wish it to be understood that we have any desire to sanction a relaxation of the well established and wholesome'rules applicable to affidavits of defense.

The appeal is dismissed at the costs of the plaintiff, but without prejudice to his right to trial by jury, etc.