HUTCHISON v. COLGATE & CO.

HUTCHISON v. COLGATE & CO. (Court of Appeals of District of Columbia. Submitted March 10, 1922. Decided May 1, 1922.) No. 3708. Pleading <&wkey;> 155 — Affidavit of defense on information and belief must allege ability to prove facts at trial. Where the essential averment in an affidavit of defense is made on information and belief, it'is incumbent on defendant to allege his ability, to prove at the trial the facts on which he based his defense, or the affidavit is insufficient. Appeal from the Supreme Court of the District of Columbia. Action by Colgate & Co., a -corporation, against Hugh B. Hutchison. From a judgment for plaintiff, because of the insufficiency of an affidavit of defense, defendant appeals. Affirmed. E. Hilton Jackson, of Washington, D. C., for appellant. E. C. Brandenberg and Bouis M. Denit, both of Washington, D. C.> for appellee. [MAJORITY — VAN ORSDEB, Associate Justice.] VAN ORSDEB, Associate Justice. This appeal is from a judgment rendered upon the insufficiency of an affidavit of defense under the seventy-third rule. The essential averment of the affidavit is made by appellant, defendant below, upon “information and belief,” and the other aver-ments are made with a disclaimer of knowledge of the facts relative thereto. It was therefore incumbent upon defendant to allege his ability to prove at the trial the facts upon which he based his defense, which was not done. The affidavit, in the last analysis, is made upon information and belief, without a tender of proof of the facts upon which defendant intends to rely. This is insufficient. Woodmen v.Davis, 48 App. D. C. 614; Hazen v. Van Senden, 43 App. D. C. 161. The judgment is affirmed, with costs.