Penn National Bank v. Kopitzsch Soap Co. , 34 W.N.C. 417 ( 1894 )

Opinion by

Mr. Justice Williams,

The instrument sued on in this case is an ordinary bank check. It was drawn by the company defendant on the Pennsylvania National Bank of Pottsville, Pa., in favor of Abram S. Keiser for four hundred and seventy-nine dollars. The plaintiff is not an original party to the instrument. It was necessary therefore that the statement should contain some .averment of the plaintiff’s title or ownership, an averment of presentment to the drawer, and a neglect or refusal to pay on his part, and a statement of the amount claimed to be due to the plaintiff.

These are the necessary elements of a “ concise statement ” of the cause of action; and such statement should be accompanied by a copy of the instrument sued on. The statement filed contains no one of the necessary averments, but does contain a copy of the check and a common count in indebitatus assumpsit for money paid, laid out and expended for the defendant at his special instance and request. The act of 1887 was not intended to introduce confusion, but clearness, in the statement of a cause of action, and the character of a defence, and reduce the range of controversy in all actions ex contractu to subjects about which the parties were unable to agree. A declaration with the common counts only gives no information whatever about the character of the plaintiff’s demand. A plea of non assumpsit is equally indefinite. It became necessary to supplement these forms of pleading with notices and rules to furnish an itemized statement of the claim, or to make disclosure of the special matter relied on as a defence. The act of 1887 sought to put the correct statement of the demand, and the actual facts relied on as a defence, in the foreground, in the first instance, so that the real controversy might be outlined at once on the record. Since its passage the common ■counts have no place to fill in pleading, and they require no answer or affidavit of defence. This will appear by an examination of the provisions of the act of 1887 relating to this subject. They are as follows: “ The plaintiff’s declaration in each of said actions, viz., the action of assumpsit, and the action of trespass, shall consist of a concise statement of the plaintiff’s demand as provided by the fifth section of the act of March 21, 1806, which in the action of assumpsit shall be accompanied by copies of all notes, contracts, book accounts, or a particular reference to the records of any court within the county in which the action is brought, if any, upon which the plaintiff’s claim is founded.” The section of the act of 1806 referred to, requires the plaintiff to’ state not only the nature of his demand, and the date of the instrument sued on, but also “ The whole amount that he, she, or they believe is justly due to him, her, or them from the defendant.” This is a necessary part of a statement. It need not be made in the words of the statute, but it must show the amount the plaintiff claims as justly due him.

This statement, when the common count is eliminated, contains nothing but a copy of the cheek sued on. It does not aver ownership of the check, or presentment and demand, or the amount justly due. It was wholly insufficient to put the defendant on a statement of his defence, and for this reason if for no other the judgment entered for want of a sufficient affidavit should be reversed.

It is reversed accordingly, and the record remitted for such further action as the case may require.