Twining v. Roberts

Opinion by

Beaver, J.,

The court below entered judgment for the plaintiff for a portion of the claim upon which the suit was founded, as contained in the statement, holding the affidavit of defense good as to certain specific averments relating to sundry amounts which the defendant alleged should be credited upon the claim, and further holding the affidavit of defense not good as to one item of 1750 for which the defendant alleged a liability on his part to a third person. The written agreement, which is included in the statement upon which the plaintiff’s demand is founded, is set forth in full, leaving the date on or before which the stone, which was the subject of the contract, was to be delivered, blank. The affidavit of defense avers that at the time the said contract was made Charles T. Eastburn, treasurer and manager of the plaintiff’s company, “ undertook for and on behalf of the said plaintiff to furnish the said stone and make full delivery thereof by July 1, 1899.” There is no allegation that Eastburn, as an officer of the company, executed the written agreement, nor is it averred that he had power to bind the company either in writing or by the alleged parol agreement.

There is no averment that the provisions of the alleged contract with the King Bridge Company, under and in pursuance of which the defendant was required to complete the abutments of the bridge by the 1st of July, for which the stone furnished by the plaintiff was to be used, were ever communicated to the plaintiff, nor is there any allegation that the King Bridge Company has enforced or attempted to enforce the penalty provided for in their agreement with defendant for the violation of the contract. The allegations of liability to pay and of being subjected to damages to the King Bridge company were vague and indefinite. It is not even alleged that the King Bridge Company demands the payment of the said alleged forfeiture. If the case were on trial, defendant would not be allowed to offer either of the alleged defenses in evidence, if his offers contained no more than what appears in the affidavit of defense. We see no error in the disposition of the case made by the court below and the judgment is, therefore, affirmed.