Opinion,
Mr. Justice Williams:This judgment was entered in the court below for want of a sufficient affidavit of defence. The question presented in this appeal is therefore whether the affidavit stated a good defence to the plaintiffs’ demand. That demand was set out in a formal statement, which alleged that the plaintiffs had sold and delivered to the defendant, from the 2d to the 28th of November, 1888, skelp-iron amounting to $29,202.22; that they had received on January 25, 1889, notes to apply on account for $25,360.35; and that there was still due the sum of $3,841.87, for which a recovery was sought in this action.
The original and supplemental affidavits, taken together, state the following facts as the defence of the American Tube & Iron Co. to the plaintiffs’ claim; (a) That the iron was bought from Cooper, Reynolds & Co., who manufactured it. (5) That the plaintiffs were the sole agents of Cooper, Reynolds & Co. for the sale of the iron, (e) That Cooper, Rejuiolds & Co. were on November 26, 1888, indebted to the defendant in the sum of $3,841.87, and in consideration thereof made and delivered to the defendant an oi^er for, or an assignment of, so much of the proceeds of the iron sold by plaintiffs to defendant, in the following form:
“ On demand, pay to American Tube & Iron Company, or order, three thousand eight hundred and forty-one eighty-seven one-hundredths dollars out of the funds now in your hands, or hereafter to come into your hands, from iron sold, or hereafter to be sold, to the American Tube & Iron Company, after paying hands in accordance with our agreement. Value received, and charge to the account of _ „ „
_ „ „ “Cooper Reynolds & Co.
“To R. & A. Heckscher & Co., 238 South 3d St., Phila., Pa.” ( d) That Heckscher & Co. had notice of the order of assignment bjr its presentation to them at its date.
It will be noticed that the plaintiffs’ right to sue in their own *427name for the price of the iron is not denied. The defence is that they have been paid in full. The manner of the payment is by the order or assignment of Cooper, Reynolds & Co., on the plaintiffs. If the order or assignment amounts to payment of the balance due, then the affidavit is good, and the judgment was erroneously entered; but if the transfer does not operate to extinguish the demand, the court below was right.
On January 19, 1891, motion for a re-argument refused.The affidavit does not allege that the plaintiffs accepted the order of Cooper, Reynolds & Co. The defendant had therefore no other light to the fund than Cooper, Reynolds & Co. had. What right had they ? We must turn to the order or assignment for an answer to this question. From that we learn that there was a previous agreement between these parties, by the terms of which Heckscher & Co. were to pay the hands of Cooper, Reynolds & Co., out of the proceeds of sales of iron made by them. We learn also that the fund drawn upon or assigned is not the proceeds of the iron generally, but the balance of such funds remaining in the hands of Heckscher & Co. after the payment of the hands in accordance with the agreement. If there was no such balance, there was no fund on which the assignment could be operative, and the plaintiffs had a right to disregard it. If there was such a fund in the hands of Heckscher & Co., that fact should have been set out in the affidavit of defence. With such an averment, the affidavit would have been sufficient, but, without it, it is wanting at the vital point. It shows a title to the fund if the fund exists. If Heckscher & Co. have, after the payment of the hands in accordance with the previous agreement, a balance subject to the order or assignment of Cooper, Reynolds & Co., that balance passed to the defendant, and the law will apply it in payment of the plaintiffs’ demand. But the existence of such balance cannot be assumed. It must be averred in the affidavit of defence. The affidavit alleged the assignment of a particular fund, if in the hands of the plaintiffs, but did not allege that such fund existed, or that it was in the hands of the plaintiffs when this suit was brought. We think the court below was right in the view taken of the affidavit in this case, and
The judgment is affirmed.