Twining v. Roberts

Superior Court of Pennsylvania January 22, 1901

Twining v. Roberts, 16 Pa. Super. 4 (1901)

1901 Pa. Super. LEXIS 2

Beaver, Orlady, Porter, Rice

Opinion of the Court

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 *8of 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.

Reference

Cited By: 1 case
Status: Published
Syllabus: Affidavit of defense — Contract—Insufficient averments. In an action upon a contract in writing for the delivery of stone, an affidavit of defense is insufficient which avers that at the time the contract was made, the treasurer and manager of the plaintiff company “ undertook to furnish the said stone and make full delivery thereof by July 1, 1899,” when it appears that the contract called for the delivery of the stone without delay; and there is no allegation that the treasurer and manager as such executed the written agreement, or that he had power to bind the company either in writing or by the alleged parol agreement. Affidavit of defense — Delay in delivery — ■Insufficient averments. In an action upon a written contract for the delivery of stone in which the time in which the stone was to be furnished, and the penalty for failure are in blank, an affidavit of defense is insufficient which alleges that by reason of the delay in delivering the stone, the defendant was not able to comply with his contract with a third party and was subjected to damages to such party, where there is no averment that the provisions of such contract were ever communicated to the plaintiff, nor that the third party had enforced or attempted to enforce, or had even demanded any damages.