Opinion by
Beaver, J.,The affidavit of defense in this case is in the nature of a demurrer as well as a sworn statement of facts relied upon as a *407defense. The demurrer cannot be sustained. The plaintiff’s statement, when fairly construed, presents a good cause of action. So far, therefore, as the action of the court below in entering judgment for want of a sufficient affidavit of defense was based upon a refusal to consider the six reasons urged by the defendant against the sufficiency of the statement, there is no error. The judgment of $600 entered in favor of the plaintiff was composed of two distinct items, one of $480, assessments duly levied by the board of directors, the other $120, being twenty-five per cent of said assessments, to cover the cost of collection. The latter was payable only after due and legal notice of the assessments and thirty days’ default in payment. The plaintiff’s statement alleges that “ full, due and legal notice of said assessment was served upon defendants on or about, July 13, 1898.” The affidavit of defense alleges “that it is not true that full, due and legal notice of the assessment mentioned in said statement was served on defendant on or about July 13,1898, or at any other time, and that no notice whatever was given defendant company of any assessment by the board of directors of the said plaintiff company.” Here is a distinct issue of fact clearly and fully raised. If the defendant’s allegation be true, there could be no recovery for the cost of collection. As to this portion of the judgment at least, the defendant company should have had an opportunity to prove the allegation contained in the affidavit, or to put the plaintiff upon proof of the fact alleged in his statement.
There is a further allegation in the affidavit of defense that the defendant company purchased from the insurance company, of which the plaintiff is receiver, policies of insurance for which they paid “ a full nonassessable rate fixed by nonassessable fire insurance companies upon policies of insurance against fire; ” that at the time the original policies were issued “ the plaintiff company promised and agreed to issue said policies as non-assessable policies and have said policies stamped on their face ‘ non-assessable; ’ ” that the defendant company ascertained after suit brought “ that the plaintiff company had not complied with its promise and agreement to issue a nonassessable policy to defendant company and have same stamped as aforesaid,” and that this omission to comply was caused either by fraud, accident or mistake.
*408These allegations, if properly supported, would constitute a defense.- Whether they could be supported by the proper quantity and quality of proof would appear when the offer to prove them was made. The question of laches urged by the plaintiff is his reply to the defendant’s affidavit which the defendant company is not bound to meet, until properly made. A defendant is not bound to anticipate in his affidavit of defense every answer which may be made in reply to the facts alleged in his affidavit.
Taking the affidavit as a whole, we think the facts therein set forth are alleged with sufficient clearness and are of such a specific character as to constitute, if properly supported by proof before a jury, a defense to the plaintiff’s claim. Whether or not the plaintiff can show such a state of facts as will negative the defense is a question which we need not now consider.
Judgment reversed and a procedendo awarded.