Close v. Hancock
Close v. Hancock
Opinion of the Court
Opinion by
The defendant’s affidavit of defense was filed on February 20. It was clearly insufficient and a rule was entered for judgment. On March 2, the defendant was granted leave to file a supplemental affidavit, which he did on March 6. It is stated in the paper-boobs — although the record does not show it — that at the argument, after this affidavit had been filed, the court deeming it defective, granted the defendant leave to file a second supplemental affidavit. It is stated that this leave was granted on March 21. On the following Saturday (March 28) the second supplemental affidavit not having then been filed the court entered judgment. We see no error in this. The original rule was pending and had been argued. It was not necessary to enter a new rule, nor to give further notice: Com. v. Snyder, 1 Pa. Superior Ct. 286. It was the defendant’s duty to file his second supplemental affidavit within a reasonable time after leave was granted. Failing to do so the court was perfectly justified in finally disposing of the rule and entering judgment.
In his first and second affidavits the defendant sets up as an offset to the plaintiff’s demand a cross demand for damages growing out of the plaintiff’s breach of a contract to build a block of houses for the defendant. He alleges in general terms that the plaintiff abandoned the contract before completion, and that it would cost at least 1910 to complete the houses according to the contract; also that he is entitled to the additional sum of $750 as liquidated damages under a provision of the contract that the plaintiff should pay $3.00 for each day that the houses remained uncompleted after June 29, 1895.
Affidavits of defense are uniformly construed most strongly
We have examined all of the cases cited by the defendant and find nothing in them to conflict with the foregoing conclusions.
The judgment is affirmed.
Reference
- Full Case Name
- Henry Close v. George W. Hancock
- Cited By
- 5 cases
- Status
- Published
- Syllabus
- Practice, O. P. — Supplemental affidavits — Time of filing same. Where a defendant is granted leave to file a supplemental affidavit it is his duty to file it within a reasonable time after such leave granted; failing to do so the court is justified in finally disposing of the rule, and in entering judgment upon the presumption that the defendant either could not or did not wish to be more specific. Practice, G. P. — Requisites of affidavit of defense alleging set-off. A deduction or set-off alleged in an affidavit of defense must, in order to be of any avail, be stated with precision and exactness as to the amount, and the court must be left in no doubt as to its source and character, so as to be able to judge of the propriety of its allowance against the plaintiff’s claim. Requisites of affidavit under act of 1887. While an affidavit of defense need not have all the particularity and technicality which are necessary in a special plea, yet it ought to set out the defense so that the plaintiff may know with some degree of certainty what will be interposed to defeat his claim. Since the act of May 25, 1887, the completeness and accuracy required in the plaintiff’s statement and the defendant’s affidavit are substantially the same. Practice, G. P. — Affidavit of defense — Breach of independent contract as set-off. Where a defendant sets up a breach of an independent contract as an offset he should, not only attach a copy of the contract, if it be in writing, and allege a breach and the amount of damages, but should also specify with precision in what the breach consists.