Barclay v. Barclay ( 1903 )

Opinion by

Mr. Justice Mitchell,

The procedure act of May 25, 1887, P. L. 271, introduced clumsy and unscientific methods into the legal statements of the parties, by the plaintiff of his cause of action and by defendant of his defense, but it did not go so far as to overturn and confuse the fundamental principles of pleading by requiring the plaintiff to set out his evidence or anticipate the defense.

The statute of limitations is a defense upon facts, and must be pleaded. It cannot be made by a demurrer which raises only an issue of law. It is not a defense absolute of which the court will take judicial notice on the plaintiff’s presentation of his case, either in his declaration or at the trial, for if the defendant does not choose to make it, it is not a part of the ease at all. And the only way the defendant can make it is by plea. A single illustration will suffice. At the trial the plaintiff might prove the signature of defendant, put the note in evidence and rest with a completed case. If defendant gave no evidence, the verdict must be for plaintiff without regard to the date of the note. And if defendant had not pleaded the statute of limitations he could not make that defense. The act of 1887 has made no change in this respect. It is very notable that neither the court below nor the learned counsel for the defendant appear to have remembered that the act expressly recognizes the plea of the statute of limitations. Section 7, after providing that non assumpsit shall be the general issue, continues, “ the defendant in the action of assumpsit shall be at liberty, in addition to the plea of non assumpsit, to plead payment, set-off, and also the bar of the statute of limitations.” Under this provision, as at common law, the bar of the statute of limitations is not raised by the general issue, but must be specially pleaded. The act directed that “ special pleading is hereby abolished,” but it was a vain and futile direction which abolished only the name, the substance is inherent in the nature of litigation and cannot be destroyed by the reforming panacea for imaginary ills, of calling things essentially different by the same name. Some glimmering of this fact seems to have entered the mind of the legislature in passing the act. The general intent undoubtedly was, badly as it was carried out, to simplify and make the pleadings more direct, so that each side should know the exact point of controversy raised by the other. The general issue on a promissory note meant in plain terms that defendant never promised to pay. But if plaintiff came to trial prepared to prove the promise, and was there met by an admission of the promise by the signature but a denial of any promise within six years, he was at an unfair disadvantage by a defense of which he had no notice. To prevent this injustice the act expressly retained special pleading as to the statute of limitations.

Both on the general principles of pleading, therefore, and on the express provisions of the procedure act, the court below was in error in sustaining the defense of the statute of limitations on a demurrer.

It was even more pronounced error to sustain the demurrer to the amended statement. That statement having been allowed and filed was the only one before the court, and it set up a good cause of action even under the erroneous view of the court in requiring it. The inconsistency with the first statement was purely formal and theoretical. A promise — in words — to pay, and a refusal — in fact — to do so are not practically inconsistent, and unfortunately not unknown in common experience. But even if the inconsistency had been substantial and had appeared on the face of the amended statement it was not demurrable. Neither declarations nor pleas are required to be consistent. Nothing could be less so than non assumpsit and payment, yet they are allowed to be joined under the statute as well as at common law. The common counts for goods sold and delivered, and for goods bargained and sold, but refused to be accepted, were nearly always joined, and there is no good reason why they should not both be used now in the same statement. If the fact of delivery or refusal to accept is the one really in controversy, the plaintiff must be allowed to state his cause of action in both ways or be subject to the risk of failing on the want of correspondence between the allegata and the probata. The case of Guarantee Trust, etc., Co. v. Farmers’, etc., Bank, 202 Pa. 94, has no bearing on this, as that was an action in tort, and by the agreement of parties was decided on the fundamental and controlling question as to when the statute of limitations began to run.

Judgment reversed and demurrer directed to be overruled, with leave to defendant to plead issuably.