Caven-Williamson Ammonia Co. v. Ice Manufacturing Co.

Citations

• 27 Pa. Super. 381
• 1905 Pa. Super. LEXIS 69

Syllabus

<p>Affidavit of defense — Set-off—Promissory note — Protest—Assignments.</p> <p>Every matter of defense presented in an affidavit of defense 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. The force of this unbending rule of practice is not changed when the defendant interposes a set-off to the plaintiff’s claim. In the assertion of such a defense the defendant becomes the actor and in respect to it he has the affirmation of the issue, and he must aver it in terms incapable of being misunderstood.</p> <p>Where an affidavit of defense sets up as a defense the liability of the plaintiff as indorser on a promissory note, an averment that “the note was not paid at the maturity thereof by the maker, although due and legal notice of protest was made upon the maturity of said note of which protest and nonpayment the said plaintiff had due and legal notice,” is not a sufficient averment of presentation and demand at maturity and notice of nonpayment.</p> <p>An averment in an affidavit of defense of an assignment of a claim of an amount stated against the plaintiff that was due and owing to the assignor at the time of the assignment and is still due and payable to defendant as such assignee, without giving any further particulars is vague and uncertain as. to its source and character and the relation of the assignor to the plaintiff. Such an averment is insufficient to prevent judgment.</p>