Kyler v. Christman
Kyler v. Christman
Opinion of the Court
Opinion by
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 demand.
In the present case, the affidavit alleges a written contract between the parties, not declared on, and of which the plaintiff
As to the plaintiff’s claim for driving logs, however, the affidavit presents an adequate answer respecting the compensation. The declaration for this service avers: “ That the defendant further contracted with the plaintiff that he should drive certain logs owned by the defendant, and known as the Lucas logs, .... to the mouth of the creek, .... that in pursuance of said arrangement, plaintiff did drive the said Lucas logs to the mouth of the creek as agreed, and the price or value of the services rendered in the performance of the said work is the sum or amount of one hundred and twelve ($112) dollars, as set forth in said statement.” This is all that is contained in the declaration touching this item. The declaration does not aver that the amount claimed for this service was fixed by agreement of the parties, nor is the demand clearly stated as a quantum meruit. It is set forth merely as the “ price or value of the services rendered.” This item in the statement attached to the declaration and upon which it
Judgment affirmed, with permission to the plaintiff to move in the court below for judgment for so much of his claim as to which the affidavit is deemed herein to be insufficient.
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- Practice, G. P. — Affidavits of defense — Averments. Every matter of defense presented should be set forth in the affidavit of defense 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 is to be regarded as not existing. Its averments must form a complete answer to the plaintiff’s demand. In an action for services rendered an affidavit of defense is insufficient which alleges a written contract not declared on, and of which the plaintiff has filed no copy, but which fails to set forth the contract or show in any way how plaintiff’s claim is connected with the contract, although such contract is alleged as a bar to summary judgment. In an action for work done in driving logs, the mere amount of the claim was set forth, but there was no statement as to when the work was done, or how many logs were driven, if charged by the log, or how many feet they contained, if charged by the foot. The affidavit of defense alleged the number of feet of logs driven, and the proper price for so doing. The amount admitted was much less than plaintiff’s claim. Held that the affidavit was sufficient to prevent judgment for the whole of plaintiff’s claim.