Eshelman v. Thompson , 1869 Pa. LEXIS 265 ( 1869 )

The opinion of the court was delivered,

by Agnew, J.

The court below erred in entering judgment for want of an affidavit of defence in this case. The plaintiff filed his declaration at the same time with the copy of the lease, thus giving notice to the defendants of the nature of his claim. By the written agreement the defendants contracted to pay a rent of 15 cents per ton for all coal dug, mined and carried away, the amount thereof to be ascertained by the weighmaster’s certificate of the weight. Had the claim been for a sum of money founded on a certain amount of coal dug and carried away, it would be difficult to maintain that the action was not upon an instrument of writing for the payment of money. The authorities would then support the right of the plaintiff to recover judgment for want of the required affidavit of defence. The case of Frank v. McGuire, 6 Wright 82, goes to this extent, and no further. But in the present case it is not pretended that a single ton of coal was dug and mined; and the plaintiff counts in his narr. for none. His breaches are assigned for a failure to perform any part of the agreement, and his declaration claims damages for the entire non-performance. Instead of averring that coal was dug, and how many tons, it alleges that the 8000 tons were not dug, and that no sufficient cause has been assigned by the defendants for not digging them; and, in short, the whole claim sounds in damages for non-performance of all the terms of the lease. The case therefore does not fall within the Act of Assembly requiring an affidavit of defence.

Johnston, Taylor & Co. v. Cowan, 9 P. F. Smith 275, decided at the last term in this district, differs from the present case, and affords it no countenance. There the lease of the privilege for taking clay was at a minimum specific money rent of $300, payable in semi-annual sums of $150, whether the clay was dug or not; and it was for this minimum sum the plaintiff brought his action. The evident intent of the contract there was, that Johnston, Taylor & Co. should pay the mimimum sum unconditionally, with the provision for more, if more clay should be dug and taken away than would, at the stipulated rate, amount to that sum, and Cowan, the plaintiff, claimed the $300 only. That case is therefore no authority for this.

Judgment reversed, and the record remanded with a procedendo.