Kelley v. Maryland Casualty Co.

Citations

• 60 Pa. Super. 15
• 1915 Pa. Super. LEXIS 141

Syllabus

<p>Affidavit of defense — Lack of material averments — Notice of defect— Failure to amend.</p> <p>1. An affidavit of defense is to be taken most strongly against the defendant, for it is presumed that he has made it as favorable to himself as his conscience would allow; and this rule applies with more force where alleged defects are pointed out as -required by a rule of court, and the defendant fails to take advantage of the rule, and amend his affidavit so as to cure the defect.</p> <p>2. In an action to recover on a contract which provided for the payment to the plaintiff on March 1, 1914, of a certain sum due upon a building contract, “unless the architect shall refuse to accept said work,” the defendant filed an affidavit in which he averred that “it is not true, as alleged in paragraph four of the statement of claim, that the architect did not on or before March 1,1914, or at any time since that date refuse to accept the said work.” Plaintiff took a rule for judgment for want of a sufficient affidavit of defense and set forth as one of his reasons that the affidavit failed to aver “that the architect did refuse to accept said work on or before March 1, 1914.” The defendant filed no amendment to his affidavit. Held, that judgment was properly entered for want of a sufficient affidavit of defense.</p>