Foertsch v. Germuiller

2 App. D.C. 340, 1894 U.S. App. LEXIS 3236

Opinion

Mr. Justice Morris

delivered the opinion of the Court:

There are five assignments of error, based on the theory that the plaintiff’s affidavit was itself insufficient; that the affidavit of defense was sufficient; that the defendant in any event was entitled to the set-off claimed by her; that the judgment being a personal judgment against a married woman was void, and that rule 73 was unconstitutional.

In the case of Cropley v. Vogeler, ante, p. 28, we have already affirmed the constitutionality of the rule in question; and so far as this court is concerned, we regard that question as no longer open. In the recent case of Johnson v. Wright, ante, p. 216, we said :

“The rule is a salutary one, and is a law to the court, as well as to suitors, as long as it remains in force. It is intended to prevent the delay of justice by the common expedient of resorting to sham or pretended defenses. It exacts nothing unreasonable from the parties.”

It ought not to be difficult for parties to comply with this rule, either in the statement of a good and sufficient cause of action, or in the statement of a good defense. The rule would seem to be plain and simple enough. And yet in the present case both of the affidavits are remarkably defective and insufficient. The defendant’s affidavit is inconsistent in itself, and inconsistent with the pleas; and if the decision of this controversy depended upon its sufficiency or insufficiency, we might hesitate to disturb the judgment of the court below, notwithstanding that there are in the affidavit suggestions of fact that would seem to demand the intervention of a jury. But, independently of the affidavit of the defendant, we fail to find in that of the plaintiff

* the fullness and sufficiency that would entitle him to a judgment under the rule. Nowhere in this affidavit does he say that he performed the services which he contracted to render. He does not say that he prepared the plans and specifications or rendered the architectural superintendence which he says he agreed to render. The most essential element in the statement of a cause of action is wanting here, and that cannot be supplied by implication, intendment, or inference. Only by inference can we assume that the plaintiff rendered any of the services which he contracted to render; and the rule contemplates positive allegation of right and not merely an inference of what the plaintiff may be supposed to intend.

The only statement in the affidavit that at all approaches an allegation that any services were rendered is in the second sentence of it, in which the plaintiff says: “My cause of action against said defendant is a balance of $245.08 due me by her for services rendered her at her request, &c., &c.” But this is not the equivalent of an allegation that services had been rendered. A claim for services rendered, and an allegation that services had been rendered, are two very different things. The rule requires plain, positive assertion; and unless parties will comply with its requirements they cannot be entitled to its benefits.

Entirely regardless, therefore, of the shortcomings of the defendant’s affidavit, that of the plaintiff is so insufficient that he is not entitled to judgment under it, even in the absence of any affidavit of defense. And so holding, we must regard the judgment rendered for the plaintiff by the court below as erroneous; and accordingly we reverse that judgment, with costs, and remand the cause, to be further proceeded with in accordance with law.

Plaintiff's Affidavit__District of Columbia, ss: Before me, the undersigned personally appeared Julius Germuiller, who, being first duly sworn according to law, deposes and says :

That I am the plaintiff in the foregoing and annexed declaration and am an architect by profession, and Mary J. Foertsch is the defendant therein. My cause of action against said defendant is a balance of $245.08 due me by„her for services rendered at her request in preparing plans, specifications and in superintending the building of five houses on Lots 5 and 6, Square 38, in the city of Washington, District of Columbia, said property being her sole and separate estate, acquired otherwise than by gift or conveyance from her husband. That some time late in June or early in July, A. D. 1889, Joseph C. Foertsch, the husband of the defendant and acting as her agent, employed me to make plans and specifications for the houses to be built on said lots. I prepared plans and specifications and presented them to the defendant, and she and her husband, after looking them over, concluded that the houses would cost too much, and directed me to prepare plans for cheaper houses. In accordance with such direction I prepared other plans for said houses to cost about $18,200. The plans were submitted to the defendant and by her approved, and a contract was entered into between said defendant and myself whereby it was agreed that I should prepare all necessary plans, specifications and detail drawings, and superintend the building of said houses, and that the defendant ■would pay me therefor as follows : $100 for the plans, specifications and drawings, 2J¿ per cent, of the contract price of said houses and 5 per cent, of the cost of all extra work. That by a contract in writing dated July 29, 1889, signed by said Joseph C. Foertsch, said defendant agreed with Dawson and Haislip, contractors and builders, to pay them the sum of $18,200 for erecting said houses. That upon digging the foundations the land -was found to be made ground (a fact before well known to the defendant, but until that time unknown to the plaintiff), and in consequence the Building Inspector ordered that concrete foundations should be made under all house walls, involving an extra expense of $564; and in addition extra work to the value of $237.50 was ordered by the defendant and performed by the contractors. That it was understood and agreed between the defendant and plaintiff that I should be paid on account from time to time, but that whatever remained due me should be paid upon the completion of the work; and that said houses were finished about March 15, 1890, and the contractors paid in full. That the total compensation coming to me was $595.08, of which amount $350 was paid from time to time by checks of the defendant, except the first payment of $50. That by reason of the premises there is now justly due me by the defendant the sum of $245.08, with interest from March 15, 1890, over and above all set-oiís and just grounds of defense. (Signed)

Julius Germuiller.

Subscribed and sworn to before me this 10th day of February, 1893. (Signed) J. R. Young, Clerk.