Altoona Concrete Construction & Supply Co. v. Knickerbocker Contracting Co.
Altoona Concrete Construction & Supply Co. v. Knickerbocker Contracting Co.
Opinion of the Court
Opinion by
This appeal is from the judgment of the court below, entered for want of a sufficient affidavit of defense.
The first item in the plaintiff’s statement of claim is “June 2. 160 Pcs. 2x8-14........$53.80.”
There are ten or twelve similar entries under different dates. If “ Pcs.” is an abbreviation for pieces, of what were they pieces ?
The second item in the statement, under the same date as the first, is “ 3 door frames 2-6 X 6-8.”
If it was necessary or important to give the sizes of the frames thus charged the same information should have been given as to all other frames contained in the statement, and yet there are twenty-two items of a similar charaeter.in which the size is not given and no information whatever as to kind or quality. In a number of other items, relating to door and window frames, the sizes are given and, in this way, the defendant was informed, at least in a measure, as to their character, and would be able to determine whether the prices charged were reasonable and just and the usual price charged for similar articles, or whether they were excessive and above the market price.
Under June 2, there is a charge of 100 feet hemlock boards $18.00. Upon the same date there is a charge of 800 feet hemlock boards $14.40. This would, indicate that hemlock boards were $18.00 a thousand. Should the item of 100 feet be 1,000 or, if 100, should the price be $1.80 ? How could the defendant tell ? There is either an “ 0 ” too few in the number of feet or one too many in the price.
In the defendant’s affidavit of defense it is said: “ Affiant is unable to state what they owe the plaintiff, for the reason that many of the charges for material do not specify the kind of material, hence he is unable to state whether or not the same are correct.” This would seem to be a good reason for not making a specific affidavit to the items referred to. In this respect we think the statement was insufficient. It is true the defendant could have ruled the plaintiff to file a more specific statement, but it is the business of the plaintiff to file one which is sufficient and, when insufficient, an affidavit of defense is not required.
To show that this is not a technicality, there appears, under
As to the items which contain something of description, the defendant has filed his affidavit that the prices charged are unreasonable and excessive and that the prices named by affiant are fair and reasonable market prices for said items.
Assuming for the moment that the defendant was bound to file an affidavit of defense, how could that affidavit be made more specific than it is ? True, he might have added the difference between the prices charged and those which he admits were correct and have stated the difference between the amount ' of the bill and the amount so determined in definite figures, but that still left the question of uncertainty as to the lumber, if it was lumber, concerning which there is no description and the frames as to which no size is given, as to the price of which he is uncertain. As we understand the affidavit, the defendant admits the delivery of the articles referred to but, so far as he is able to determine the fair price, defends as to the price. It was impossible for him, therefore, to have determined exactly what he was willing to give judgment for. But in any event, that was a matter of mere calculation and the maxim, “ That is certain which is capable of being made certain ” applies. Whether defendant’s attorney furnished such a calculation at the argument does not appear by the record, but certain it is that he could have been required to furnish it.
The affidavit was made by the defendant’s superintendent, on behalf of the company, the person on whom the summons was served. He was presumably what the name implied — the practical manager of its operations — and as such naturally knew more of its affairs than any of those technically called officers, if the defendant was a corporation. We see no difficulty, therefore, either as to the person making the affidavit or as to its form, if the affidavit was required, but we are of
The-judgment is reversed and a procedendo awarded.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.