De Cou Bros. v. Englander

Citations

• 39 Pa. Super. 243
• 1909 Pa. Super. LEXIS 470

Syllabus

<p>Practice, C. P. — Pleading—Statement of claim — Sufficiency of statement — Affidavit of defense — Appeals.</p> <p>1. If an affidavit of defense does not go to the merits of the plaintiff’s claim, but only to the sufficiency of the statement, allegations of fact which do not appear in the statement, should not, on appeal, be introduced into the defendant’s history of the case and brief of argument. If he deemed it important that they be brought to the notice of the court, he should have put them in his affidavit of defense and sworn to them.</p> <p>2. Where a statement of claim alleges that the sum claimed is justly due and payable from the defendant to the plaintiff, the mere omission to aver that it has not been paid, — the statement being sufficient in other particulars to show a good cause of action,' — does not relieve the defendant from the necessity of filing an affidavit of defense in order to prevent judgment.</p> <p>3. Where, in an action against a guarantor, the plaintiff’s statement of claim avers that the defendant had admitted to plaintiff’s attorney that'he had in his hands a certain sum of money which the principal delivered to him to be paid to the plaintiff for goods which the latter furnished to the principal under the guaranty agreement, and such averment is not denied in the affidavit of defense, mere technical objections to the statement of claim which might be good, if the plaintiff were suing the defendant as guarantor only, will not be sufficient to prevent judgment.</p>