Biernbaum v. Foster
Biernbaum v. Foster
Opinion of the Court
Opinion by
The original contract between these parties in relation to the finishing and erecting certain ironwork in Phila
The court on motion, made absolute a rule for judgment for the amount as to which the affidavit of defense is insufficient, to wit: the sum of $801.40, and treated it as being admitted to be due. The validity of the judgment depends upon the construction given by the court to the part of the affidavit above quoted, in regard to which it is necessary to cite but few authorities.
Allegations of set-off in general terms, are not to be regarded; the averment must be as specific as those used in the statement. The defendant has the affirmative of the issue and must aver his set-off in terms incapable of being misunderstood, and they must be stated with exactness as to source, character, and amount with the same clearness, and particularity as are required of a plaintiff in his statement: Caven-Williamson Ammonia Co. v. Ice Co., 27 Pa. Superior Ct. 381; Appleby v. Barrett, 28 Pa. Superior Ct. 349; Sprissler v. McFetridge, 37 Pa. Superior Ct. 607; Stage v. Smith, 41 Pa. Superior Ct. 273.
The averment “And it was understood and agreed that defendant would be entitled to a credit for the value
The judgment of the court is affirmed.
Reference
- Cited By
- 3 cases
- Status
- Published
- Syllabus
- Practice, C. P. — Affidavit of defense — Set-off—Building contract. 1. In an action to recover the balance alleged to be due on a building contract, an affidavit of defense is insufficient which alleges that the defendant had relieved the plaintiff of the performance of a part of his original contract and that “it was understood and agreed that the defendant would be entitled to a credit” for the value thereof which amounted to a sum named which was alleged to be in excess of the balance of the work for which the suit was brought. 2. Allegations of set-off in general terms are not to be regarded; the averment must be as specific as those used in the statement. The defendant has the affirmative of the issue and must aver his set-off in terms incapable of being misunderstood, and they must be stated with exactness as to source, character and amount with the same clearness and particularity as are required of a plaintiff in his statement of claim.