Fritz v. Hathaway , 135 Pa. 274 ( 1890 )

Opinion,

Mb. Justice Mitchell :

The affidavit of defence called attention to the fact that the contract, as appeared on the face of the book account, had been completed more than six years before suit brought, and averred that defendant had made no new promise. This distinctly set up the bar of the statute of limitations, and was a good defence against summary judgment.

But the statement itself is too defective to sustain the judgment. In the first place, it sets out that the “ action is founded on a book account or entry, a copy of which.....accompanies this statement,” etc. But the copy does not charge the defendant, nor does the statement say that the original does so. It “avers that the charges there made were intended, as a personal charge against said defendant,” etc. It is quite consistent with such intention that the entries were in fact charged in the book against some other person, for whom defendant was claimed to be responsible, or, as in cases of mechanics’ claims, against a specific lot or building, without naming the defendant at all. That something of this kind is meant in the present ease appears probable from the statement that the entries were intended as a personal charge, “ by virtue of a special agreement.” If the entries are in fact against defendant by name, they are a personal charge, without resort to a special agreement. On the other hand, if the entries in the book do really name the defendant, then the copy filed is incomplete, and does not come up to the requirement of the statute. It is true, that the affidavit of defence must now be made to the statement, to which the copy of book entries is only an appendix or exhibit which may be helped out by averments ; so that the failure to name the defendant therein is no longer a fatal defect, as it was under the former affidavit of defence law, as held in Wall v. Dovey, 60 Pa. 212. But the copy is a necessary appendix to the statement by the express terms of the act of May 25,188T; and this means a correct and complete copy, as should be made to appear either on its face or by categorical averment.

But there is another equally serious defect in the statement. The action is averred to be founded on the book entries, and they were more than six years old when the writ issued. The plaintiff endeavors to avoid this apparent bar of the statute of limitations by the brief averment that the amount so charged “ became due and payable ” at a subsequent date. But how or why it did not become due till then is not explained. If the book entries are the only foundation of the action, then they are manifestly insufficient to keep the claim alive more than six years from the date of the last item. If, however, a special agreement is relied upon, it should be set out. Suppose the position of parties to be reversed. Suppose plaintiff had brought this action on May 25, 1888, and defendant had filed an affidavit of defence that the money was not due until June 15th; it is clear on all the authorities that the affidavit would have been held bad for not setting out the reason, and, if it depended on special contract, the terms of such contract. The completeness as to essential facts which has always been required in an affidavit of defence is now equally required in the statement of claim. The act of 1887 provides that the plaintiff shall make a concise statement of his demand, accompanied, in actions of assumpsit, by copies of all notes, contracts, etc., upon which the claim is founded. The spirit of this act plainly requires that every contract or agreement upon which the claim in any manner depends, even if in parol, shall be averred in the statement. The act is unwise, and is founded on the erroneous and superficial view that, by abolishing technical forms, it can get rid of distinctions inherent in the nature of the subject, but it would be doing injustice to the purpose of its framers to hold that it was meant to sanction mere looseness of pleading. Accuracy and technical precision have no terrors except for the careless and the incompetent, and the act of 1887 was not intended to do away with them. As to all matters of substance, completeness, accuracy and precision are as necessary now to a statement as they were before to a declaration in the settled and time-honored forms.

It is said that these objections were not made in the court below, and therefore should not be heard here. But the specifications of error raise the question of the sufficiency of the statement; and, as there are no pleadings on a rule for judgment, there is nothing in the record before us to show whether the particular objections now insisted on were urged in the court below or not. But, even if in fact they were not, it would make no difference, because a judgment for want of a sufficient affidavit of defence is, in effect, a judgment on demurrer, and,- like all such judgments, must be self-sustaining on the face of the record.

It is not always possible to determine whether an affidavit of defence is skilfully drawn to suggest a defence without really swearing to it, or, on the other hand, whether the statement is with equal skill worded so as to avoid a defence, such as the plain bar of the statute of limitations. In such cases the court of original jurisdiction has advantages that we have not, in the liberal use of its power to allow amendments and supplemental affidavits. It is not yet too late for the exercise of such powers in this case: Jones v. Gordon, 124 Pa. 263. But it would be sanctioning a dangerous precedent to support a judgment on the present statement in the face of the present affidavit of defence.

Judgment reversed, and procedendo awarded.