Reiter v. Fruh

Opinion by

Mb. Justice Mitchell,

The defendant Quinn’s name did not appear in any way upon the note in suit, and it was therefore incumbent on plaintiff to show affirmatively Quinn’s connection with it. The only way in which this was done was by naming Quinn as one of the defendants, and calling them copartners in the caption of the statement. The statement itself contained no averment of the partnership or of Quinn’s membership in it if there was one. This is very slovenly practice, and not to be commended. In courts whose rules require' an affidavit by plaintiff of the truth of the matters alleged as the basis of the claim, such a statement might well be held bad on demurrer, and certainly not sufficient to sustain a judgment for want of an affidavit of defence. The present case, however, had passed that stage, and we need not consider the sufficiency of the statement. It would be good after verdict.

The rule of the court below relieves the plaintiff of the necessity of proving the execution of the note, unless the defendant, “ by affidavit filed at or before the time of filing his plea, shall have denied that such note .... was duly executed,” etc. This, of course, means duly executed by defendant, or by his authority. With execution by other parties he has no concern. The defendant Quinn filed an affidavit of defence, before plea pleaded, denying that he' made the note in suit, or authorized or ratified the making of it, and that he was or had been a member of the firm. This was a full compliance with the rule by its express terms, and was so held upon a rule identical on this point with the present, in Hogg v. Orgill, 84 Pa. 344. That case has always been regarded as settling the construction of the rule and the practice under it. See Adams v. Keboe, 1 W. N. 232. To permit a different construction now would do injustice to parties who have relied upon the settled practice.

Nor can the exclusion of appellant’s evidence be sustained upon the rule of court as to partnerships. His affidavit denied the existence of the partnership, so far as he was concerned, and that was all he was called upon to do to put plaintiff upon proof of his liability. It is true that the rule is framed in analogy to the requirements of a plea in abatement, and calls on the defendant to state who are the partners. Failing to do this, defendant cannot defeat the action by proving non-joinder or mis-joinder of other parties as partners. But the issue here was not who else were partners, but whether Quinn was or not. That fact was essential to plaintiff’s recovery against Quinn, and the latter’s affidavit put upon plaintiff the burden of proving it.

Judgment reversed, and venire de novo awarded.