Baxter v. Davenport

Opinion by

Head J.,

The learned court below made absolute a rule for judgment for want of a sufficient affidavit of defense and the defendant appeals. The plaintiff rests his claim on two separate contracts, the first in writing, the second in parol. In the written contract the plaintiff alleges he agreed and undertook to take down and rebuild a stable for the defendant with thirteen inch brick walls, etc., for a specified price, which was afterwards slightly reduced by the parties on account of an agreement by the defendant to do a portion of the work himself. The plaintiff then alleges that he properly performed the work and claimed the amount of the contract price, less certain payments which had been made on account thereof.

The affidavit of defense, in reply to this portion of the claim, sets up first that the defendant had paid on account of the contract the sum of $134.85 by the purchase of girders to be used in the stable, which under the contract it was the duty of the plaintiff to furnish; but at the instance of the latter the defendant bought and paid for and supplied them, and it was agreed the price thereof should be considered a credit on account of the purchase money, which credit had not been allowed. It alleged further that the plaintiff had not performed the work which he had undertaken to do in a reasonably good and workmanlike manner, but that one of the walls had been so badly built it was in danger of falling in and had to be supported by a block and tackle even during the period of construction. Further, that the affiant had remonstrated with the plaintiff astb the character of the work, but notwithstanding his efforts the wall was finished in such an imperfect manner that it was, at the time of the filing of the8' affidavit, four or five inches out of plumb and likely to fall in, which would entail upon the defendant the cost of rebuilding the same, estimated to be about $500. We regard such an affidavit as fairly putting in issue the question of a substantial performance of the contract by the plaintiff which was a condition precedent to his right to recover. We cannot reach the conclusion adopted by the learned court below that the record thus far presented a proper case for a summary judgment.

The plaintiff further averred that by the subsequent parol contract which he set up he undertook to perform extra labor and furnish extra material not included in the written contract, and that, as a result of this verbal undertaking, he had provided material and done labor to the extent of $343.70. As to this allegation of the statement, the defendant flatly denied that any such verbal contract had been made or that any extra work had been done or materials furnished; that all of the said materials and labor were necessarily furnished in the performance of the written contract, and that as a consequence he' was not indebted to the plaintiff in the sum claimed for extra work or any part thereof. Again we are forced to conclude that an issue of fact was fairly raised by the pleadings, and that the defendant was entitled to have his case tried in the usual manner.

We have not before us a situation where the defendant not denying the claim of the plaintiff, seeks to set off against such claim a counterclaim of his own, and the cases cited in the briefs of counsel, holding that a set-off, so advanced, must be pleaded with the same particularity as if it were the basis of an independent action do not apply. Even if we were to agree that the question of the sufficiency of the affidavit was a doubtful one, such a doubt should be resolved in favor of the right of the defendant to have his case tried by a jury to the course of the common law.

The judgment is reversed, the rule is discharged, and the record remitted with a procedendo. The costs of this appeal to be paid by the appellee.