Bushong v. Edwards

52 Pa. Super. 376 | Pa. Super. Ct. | 1913

Opinion by

Porter, J.,

The affidavit of defense in this case is clearly insufficient. It is not only evasive but it was made by a stranger to the record, H. Clinton Heller. It is true he styles himself “employee and attorney-in-fact of Charles W. Edwards,” but he entirely fails to disclose the scope of his employment or nature of his authority, and so far as revealed by this affidavit that employment or authority may have had no connection whatever with this litigation or the transactions out of which it arose. Nor is it suggested that the affidavit of defense was made by authority of the defendant, or even with his knowledge. When an affidavit of defense is made by a stranger to the record, the reason why it is not made by the defendant should be set forth in the affidavit. “The correct rule would seem to be that when the defendant,puts in a stranger’s affidavit, it must show upon its face sufficient reason why it was not made by the defendant himself; that a real disability existed which prevented him from making it, and the circumstances giving rise to the disability.” Griel v. Buckius, 114 Pa. 187; Citizens’ Natural Gas Co. v. Natural Gas Co., 210 Pa. 137. The record discloses that proof of service upon the defendant of plaintiff’s statement was duly, filed of record on July 28, 1911, and the affidavit of defense was not sworn to until the fourteenth of the following month. The only reason, given in the affidavit of defense, for the filing of the affidavit by a stranger is: “that the said defendant, by reason of his absence from the county, is unable personally to present his defense at this time.” There is no attempt to explain how long the defendant had been out of the county, nor of the reason for that absence; for anything that appears in the affidavit the defendant may have gone away that day for the sole purpose of avoiding the responsibility of filing the affidavit of defense.

The affidavit states “that the deponent knows that the said defendant has a just and legal defense to the whole of the plaintiff’s demand in this action.” But it entirely fails to state how that knowledge was acquired, the source from which the information was derived. This leaves the affidavit open to the inference that the knowledge of the affiant was. founded merely upon hearsay. He does not state that he had represented the defendant in the business transactions out of which the litigation arose or that he had any personal knowledge of those transactions whatever. While the affidavit concludes with the words “all of which the deponent expects the defendant to be able to prove upon the trial of this cause,” it is not alleged that he believes the statements of his affidavit to be true. The affidavit was in these respects insufficient: Taylor v. Sellers, 12 Pa. Superior Ct. 230; Baum v. Surety & Guaranty Co., 19 Pa. Superior Ct. 23; Safety Banking & Trust Co. v. Conwell, 28 Superior Ct. 237.

This action arose out of the bailment of an “Electrona Electric Piano,” which had been delivered, on February 15, 1911, by defendant to Emil Anderson, under a contract which called for a payment of $200 in cash. Anderson died on the twenty-seventh day of the month and on the twenty-second of March the defendant demanded and received the piano from the plaintiff, the administrator of Anderson. The statement averred that at the time the written agreement was executed a credit for $200 was indorsed thereon, being the amount of the cash payment required. It further averred that “The $200 credit referred to in the above agreement was given by the defendant for a piano belonging to Emil Anderson. The defendant agreed to accept the said piano at $200 cash, and it was delivered to him under that agreement.” The defendant, under the terms of the original agreement had the right to demand the return of the Electrona Electric Piano, at any time, without regard to whether Anderson was or was not in default, and Anderson was bound upon such demand to deliver the property. This put it in the power of the defendant, by the express covenants of the contract, to absolutely rescind it at any time and take his property, although the bailee was not in default; when, however, the defendant chose to exercise that right, he would, in the entire absence from the agreement of any covenant that Anderson should forfeit the cash payment which he had made, be required to return that cash payment less the compensation for the use of the property and damages for any injury which it had sustained: Preston v. Whitney, 23 Michigan, 260. If, as alleged in the statement, the defendant had agreed to accept the old piano at $200 cash, and it was delivered to him upon that agreement, the effect was precisely the same as if Anderson had paid in cash, and the old piano became absolutely the property of Edwards, who might do with it what he pleased. The only material averment of the statement of claim which was attempted to be controverted by the affidavit of defense was that which related to the collateral agreement with regard to the old piano. The affidavit of defense denies that the old piano was accepted “by the defendant’s authority” as $200 cash, and that it was delivered to him under such agreement, and upon this point avers, “that said piano was accepted by the defendant as a payment on account of said lease provided that the said Emil Anderson pays said monthly installments of $20.00 for seventeen and one-half months according to the terms of said lease.” The original agreement, a copy of which is set forth in this affidavit of defense, was signed “C. W. Edwards, per S. R. Landis.” The affidavit of defense is here defective in that it wholly fails to state what were the limits of the authority of Landis, it merely avers that the agreement was not made “by the defendant’s authority.” The affidavit ought to have set forth the relation in which Landis stood to Edwards; when the deponent asserted that the agreement was not authorized by the defendant he was probably merely stating his own conclusion of law. The affidavit is upon this point further defective in that it fails to state what was to be done with the old piano after the defendant took it, it contains no suggestion that the old piano was to be retained as a pledge, or that it was ever under any circumstances to be returned to Anderson. The affidavit does in fact negative any inference that the piano was taken by Edwards as a mere security for the cash payment, for it expressly states that Edwards spent $150 upon it in making such repairs as to make it salable. This affidavit in short fails to sufficiently deny that Edwards had acquired title to the old piano and was free to dispose of it, without regard to what was done under the written contract with regard to the new piano. The contention of the appellant that the plaintiff’s remedy was by replevin to recover the old piano is not well founded, upon the facts as stated in the affidavit of defense.

The judgment is affirmed.