Carnahan Stamping & Enameling Co. v. Foley
Carnahan Stamping & Enameling Co. v. Foley
Opinion of the Court
Opinion by
Numerous cases decided by the Supreme Court and by this court support the rule concisely stated in Loeser v. Erie City Rag Warehouse, 10 Pa. Superior Ct. 542: “ Allegations of set-off in general terms are not to be regarded. The averments must be as specific as those used in a statement of claim. The defendant in respect to a claim of set-off is the actor. ' He may defalk an amount less than, equal to, or in excess of the claim of the plaintiff, and, should the case go to a jury, demand a certificate in his favor. He has the affirmative of the issue. There can be no harshness in imposing upon him the obligation to aver his set-off in terms incapable of being misunderstood. Failure to file an affidavit specific and precise as to source, character and amount must result in judgment being entered against him.”
The defendant does not deny the receipt of the goods for
The defendant has not brought himself within the rule as to the essential averments in an affidavit of defense where a set-off is made the ground of defense. The judgment is therefore affirmed at the cost of the appellant.
Reference
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- Carnahan Stamping & Enameling Company v. Foley
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- Syllabus
- Set-off — Affidavit of defense — Specific averments. Allegations of set-off in an affidavit of defense in general terms are not to be regarded. The averments must be as specific as those used in a statement of claim. The defendant in respect to a claim of set-off is the actor. He may defalk an amount less than, equal to, or in excess of the claim of the plaintiff, and, should the case go to a jury, demand a certificate in his favor; he has the affirmation of the issue. In an action for goods sold and delivered the defendant in an affidavit of defense did not deny the plaintiff’s claim, but averred that he had suffered a loss in an amount stated, because plaintiff had failed to deliver a number of articles referred to in an exhibit attached to plaintiff’s statement. How many of each kind of the articles the plaintiff failed to deliver, with the price of the same was not averred, nor was there any specific information as to contracts made by the defendant which he was unable to fill, nor whether the defendant was unable to obtain the goods of a similar kind and quality at the same price. Held, that the affidavit of defense was insufficient.