Class v. Kingsley

21 A. 902, 142 Pa. 636, 1891 Pa. LEXIS 786

• Court: Pennsylvania Court of Common Pleas, Philadelphia County
• Decided: May 27, 1891
• Docket: No. 208
• Status: Published

Opinion

Opinion,

Mr. Justice McCollum:

Charles Class, trading as the Arctic Hygeia Ice Manufacturing Company, appellee, claims by bis statement filed in this case tbat in the months of April and May, 1890, ho sold and delivered to J. E. Kingsley & Co., appellants, 46.167 tons of ice, at $7 per ton. It is not denied that the ice was delivered as stated in the claim, and it is not alleged that the sum charged for it is exorbitant or above the market price. The sole defence made to the claim is, that on or about the fifteenth of March, 1890, one Henry B. Crowell, who was then engaged in business with the appellee under the firm name of Crowell & Class, agreed with the appellants to deliver to them ice at four dollars per ton, until the return of J. E. Kingsley from California, which was expected within two months. To develop this defence, two affidavits were required, and it is fair to assume that these contain all the facts which constitute the appellants’ answer to the claim. It is not stated in what business Crowell & Class were engaged on the fifteenth of March, that Crowell had authority from the appellee to make contracts for the sale of ice, or that the ice was delivered in pursuance of the contract. All the facts alleged in the affidavits may exist without impairing the validity or justice of the appellee’s demand. To hold these affidavits sufficient, we must infer that Crowell & Class were engaged in the ice business, and that the appellee is their successor and delivered the ice under their contract, or that he authorized Crowell, as his agent, to enter into the agreement which is set up as a partial defence to the action. If the authority of Crowell to bind the appellee by the agreement sufficiently appeared in the affidavits, they would constitute a valid defence to three sevenths of the claim. But this essential element of the defence is left wholly to inference, when, if it existed, it could and presumably would have been stated as a fact. It is too well settled to need citation of authorities that the affidavit must contain all the facts necessary to make a legal answer to the claim, and that their omission cannot be supplied by possible inferences. In this case, it is not even averred that the appellants believe and expect to be able to prove that Crowell had authority from the appellee to make the contract, or that the ice was delivered in pursuance of it, and it is not a necessary inference from the facts stated in the affidavits that the contract was authorized or adopted by him. It is a reasonable and salutary rule which requires that the facts relied on as a defence shall be plainly stated in the affidavit, that the court may judge of their legal effect as an answer to the claim. While technical precision in the statement of the facts is not demanded, a plain and intelligible averment of them is necessary. Applying to this case the well settled rules which govern the statement of a defence, we are constrained to hold, with the court below, that the affidavits are insufficient.

The judgment is affirmed.