Kinney v. Harrison Manufacturing & Boiler Co.
Kinney v. Harrison Manufacturing & Boiler Co.
Opinion of the Court
The plaintiff’s statement is not good. It seems to combine two causes of action, one arising under a contract and the other under a tort. In the one, she claims $618 difference between the amount of the alleged contract for drums for boilers and what she paid therefor to other parties, and in the other, $2,000, by reason of a fraud perpetrated upon her. These separate causes of action cannot be combined in a single suit. If it be said that the claim for damages for the alleged fraud was simply makeweight, it should have been omitted.
As to the alleged contract. It does not seem to us that the letters set forth in the plaintiff’s statement constitute a contract. By her own showing, there were certain modifications requested, concerning which there seems to have been no meeting of the minds of the parties. Without any reference to the affidavits of defense, therefore, it seems plain that the plaintiff was not entitled to judgment.
The fact that the summons was served upon one officer of the company and the affidavit made by another is immaterial. The affidavits refer to coi’respondence alleged to be known to the officer making the affidavit. The defendant alleges that material parts of the correspondence, set forth in the plaintiff’s statement, were suppressed therein and that no contract ever was entered into between the parties, for the reason that “ the plaintiff failed to furnish security as required by the defendant, before it would enter into any contract.” This, if true, constitutes a good defense. The motion for judgment for want of a sufficient affidavit of defense was properly overruled.
Order affirmed, without prejudice, etc.
Reference
- Full Case Name
- Kinney v. Harrison Manufacturing & Boiler Company
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- Syllabus
- Affidavit of defense—Practice, C. P.—Pleading—Defective statement. No affidavit of defense is necessary where the statement of claim discloses two causes of action, one arising under a contract, and the other under a tort. A statement of claim is fatally defective which shows on its face certain modifications of the arrangement between the parties, as to which the minds of the parties had not met. Affidavit of defense—Corporations—Officers. In an action against a corporation the fact that the summons was served upon one officer of the company and the affidavit of defense was made by another is immaterial. Affidavit of defense—Practice, C. P. In an action upon a contract alleged to be contained in certain letters set out in plaintiff’s statement, an affidavit of defense is sufficient which alleges that material parts of the correspondence, set forth in the plaintiff’s statement, were suppressed therein and that no contract was ever entered into between the parties, for the reason that “ the plaintiff failed to furnish security as required by the defendant, before it would enter into any contract.”