DocketNumber: Appeal, No. 42
Citation Numbers: 49 Pa. Super. 542
Judges: Head, Hendekson, Mobkison, Oblady, Pokteb, Rice
Filed Date: 4/15/1912
Status: Precedential
Modified Date: 2/18/2022
Opinion by
The plaintiff declared for lumber sold and delivered to the defendant and in the claim, as filed, we find the following:
“June 27 5 pcs. 1x10x16 W. P.
3 pcs. 1x8x16 W. P.
8 pcs. 1x6x16 W. P.
5 pcs. 1x3x12 W. P.
54 lin. ft. 1x4
196 ft. @..... 9.80
275 lin. ft. |x|“ stop .. ........... 2.75”
In addition to this the declaration contains the following items: “Leaded and plate glass as per estimate 90.00; shelving and wainscoting as per estimate 55.00.” We are clearly of the opinion that the above-quoted items are so indefinite and uncertain that no duty is imposed on the defendant of fifing an affidavit of defense. If such estimates were made, were they oral or in writing? If oral, the substance at least of what was said and agreed to ought to have been stated. If in writing, a copy of said
We are of the opinion that the plaintiff signally failed to file a declaration which called upon the defendant to file an affidavit of defense. An insufficient declaration or statement of claim under our procedure act of 1887 does not impose upon a defendant the necessity of replying thereto by affidavit. The defendant in the present case, therefore, was not called upon to file an affidavit of defense: Leek v. Livingston Manor Mfg. Co., 30 Pa. Superior Ct. 377.
Appeal dismissed, at the cost of appellants, without prejudice to their right to a trial by jury and a second appeal after final judgment.