Guerian v. Joyce

COOPER, C.

When this case was called for trial, the defendant objected to all evidence offered by plaintiff, upon the ground that the complaint does not state facts sufficient to constitute a cause of action. The court sustained the objection, and, upon defendant’s motion, judgment of nonsuit was entered. This appeal is from the judgment. The defendant contended, and the court held, that the claim upon which the action was brought was not properly verified. The verification contains all the statute requires. It states that the sum is justly due the claimant, and “that no payments have been made thereon which are not credited, and that there are no

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offsets to the same, to the knowledge of the claimant or affiant,

except some small items, the exact amount of which is not lenown to affiant, hut which she is willing to have credited upon same when same is shown hy administrator herein.”

The defendant contends that the exception vitiates the verification; that it shows that there are certain offsets to the amount stated in the claim. We do not think the ends of justice require us to take such an extremely technical view of the verification.

It substantially complies with the statute. It contains all that the statute requires, but, in addition, shows that there are some small items of set-off. As an excuse for not stating the amount, -the claimant states that the amount of these items is not known to her, but that she is willing to have the same credited when shown by the administrator. If she knew there were offsets, she could not swear that there were none. If she did not know the amount, she could not state it. She did state that there were offsets, and that she did not know the amount, but that she was willing to credit the account with such offsets. She could not well have done more. It is said that she could have said the amount did not exceed a certain sum. It might have been better for her to have done so, but it may be answered that the administrator could have allowed the account, or offered to allow it after crediting the offsets. He did not do so, but rejected it absolutely. His action was equivalent to saying that it was not a just claim, and that there were offsets to the entire amount. A substantial compliance with the statute is sufficient.