Caven-Williamson Ammonia Co. v. Ice Manufacturing Co.

27 Pa. Super. 381 | Pa. Super. Ct. | 1905

Opinion by

Orlady, J.,

It has been decided by the Supreme and this court a number of times that one of the rules most inflexibly held respecting affidavits of defense is that every matter of defense presented must be set forth specifically, and with such detail as to show, clearly and definitely its relation to the plaintiff’s claim. Nothing must be left to inference and what is not stated must be regarded as not existing. Its averments must form a complete answer to the plaintiff’s demands : Kyler v. Christman, 23 Pa. Superior Ct. 548. The force of this unbending rule of practice is not changed when the defendant interposes a set-off to the plaintiff’s claim. In the assertion of such a defense the defendant becomes the actor and in respect to it he has the affirmation of the issue, and he must aver it in terms incapable of being misunderstood: Carnahan Stamping, etc., Co, v. Foley, 23 Pa. Superior Ct. 643,

The averment that “ the note was not paid at tbe maturity thereof by the maker although due and legal notice of protest was made (given) upon the maturity of the said note of which protest and nonpayment the said Caven-Williamson Ammonia Company had due and legal notice,” is somewhat stronger than the statement in Peale v. Addicks (174 Pa. 543), but it is subject to the same objections as stated by Judge Sterrett. It is a conclusion of law rather than a statement of fact from which the conclusion may be legitimately drawn. . .'. In no proper sense is it the legal equivalent of a sufficient averment of presentation and demand at maturity, and notice of nonpayment.

The three indorsements in this case are by Freeston individually, as president of, the plaintiff corporation, and in his personal name “ Wm. E. Freeston, attorney.” In such a case the averments of presentation, demand, and notice of nonpayment are specially important and necessary to make the indorser liable. The averment of an assignment of a claim of $184 against the plaintiff company that was due and owing to Arthur Freeston at the time of the assignment and is still due and payable to defendant as such assignee is vague and uncertain as to its source and character and the relation of Freeston to the plaintiff.

The judgment is affirmed.