Opinion by
Head, J.,If the contract between the parties for the sale and purchase of 335 barrels of flour only required “ that the defendant company should pay for the same as it was hauled from the warehouse from time to time in accordance with the needs of the defendant’s business,” the learned court below was right in discharging the rule for judgment for want of a sufficient affidavit of defense. Indeed we do not understand this to be disputed, *137because the sole claim of the plaintiff for judgment, on the record as it now stands, rests on the contradictory proposition that the terms of sale were “ net cash.”
This court has frequently said, in substance, that, in disposing of such cases, the sufficiency of the affidavit is not to be determined by applying to it the same rules of refined and technical criticism that were formerly thought necessary to be applied in passing on the validity of a bill of indictment or a demurrer at common law. On the contrary, such affidavit is to be construed in a spirit of fair liberality; its language is to be given the same meaning it would be given in the ordinary speech of the people, and all of the statements of fact therein appearing, when thus regarded, must be accepted as true. In the present case we have, in the very outstart of the affidavit, the clear, plain averment as to what the contract, in fact, was. That averment distinctly challenges the correctness of the plaintiff’s basic statement that the terms of payment were “ net cash,” and, by the rule above stated, should put it to the proof of that proposition, without establishing which, it cannot hope to recover.
But the learned counsel for the appellant, with much skill, argues that defendant could not have meant what has already been quoted from the affidavit, because of certain other acts or declarations set forth in the statement, affidavit or correspondence. This tends to put before us the evidential value of such matters and invites us to resolve the issue of fact raised, when our only function is to determine that it exists.
The contract, whatever it really was, was made over the telephone. The appellant earnestly argues that its letter of October 12, confirming its version of the conversation, and stating plainly that the terms were “net cash,” to which there is no reply in writing, leaves no room for doubt that the contract was as it declares. That this letter will be of great value as a piece of corroborative evidence on the trial might be conceded. For our purposes, however, it is met by the flat denial of the defendant that “ it at any time confirmed the alleged terms of sale,” but that, upon receipt of the bill for the entire 385 barrels, its representative, first over the telephone and then by personal interview, insisted that the terms of contract were “ as herein set forth ” and denied “ that the company (defendant) has pur*138chased said flour on any such terms without any opportunity for inspection, defendant’s contract having provided for deliveries from time to time,” etc.
We see no reason for lengthening this opinion by adverting to a number of other matters referred to in the affidavit and argument of counsel. It is sufficient to say that upon an attentive consideration of the affidavits filed we are all of the opinion that an issue of fact has been fairly raised which must result in the case being tried to determine that issue. The assignment of error is overruled.
Appeal dismissed at cost of appellant without prejudice, etc.