McGowan v. Boney
McGowan v. Boney
Opinion of the Court
Tbe court below made absolute a rule for judgment for want of a sufficient affidavit of defense, and tbe defendant brings this appeal alleging as tbe sole error, tbe action of tbe court in making absolute tbe plaintiff’s rule for judgment.
Tbe affidavit is plainly defective. While in a general way it denies tbe contract as set forth in tbe plaintiff’s statement and alleges defective performance of tbe work done, it particularly relies on tbe item as follows: “Amount paid to tbe plaintiff by tbe defendant was 3~3,d§5-” This statement is so ambiguous that it is impossible to interpret this meaning as fixing any payment of any sum of money. For this reason alone, tbe court was warranted in making tbe order complained of. Tbe affidavit of defense should state tbe facts specifically, and with sufficient detail to enable tbe court to say whether or not they amount to a defense; and it is bad
Appeal dismissed at costs of appellant and record remitted with direction to enter judgment against defendant for such sums as to right and justice may belong, etc.
Reference
- Cited By
- 3 cases
- Status
- Published
- Syllabus
- Contracts — Assumpsit—Practice—Insufficient affidavit of defense. In an action of assumpsit, an affidavit of defense is insufficient which contains an ambiguous statement as to amount of money alleged to have been paid, and does not Set forth the facts with sufficient detail to enable the court to determine whether or not they amount to a defense.