Bovaird v. Barrett & Son

• Decision Date: 12 December 1921
• Docket Number: 143-1921
• Citation: 78 Pa.Super. 68
• Parties: Bovaird et al., Appellants, v. Barrett & Son
• Court: Pennsylvania Superior Court

78 Pa.Super. 68

Bovaird et al., Appellants, v. Barrett & Son

No. 143-1921

Superior Court of Pennsylvania

December 12, 1921

Argued October 27, 1921

Appeal by plaintiffs, from judgment of C.P. McKean County, Oct. T 1919, No. 54, for defendant on affidavit of defense, raising a question of law, in the case of George W. Bovaird, Frank M Enright, Mark V. Enright, William Enright and Joseph S Barry, Copartners, trading as Enright & Company, v. V. S Barrett and Glenn V. Barrett, trading as Barrett & Son.

Assumpsit on contract to recover for services rendered. Before Bouton, P. J.

The facts are stated in the opinion of the Superior Court.

The court entered judgment for defendant on an affidavit of defense, setting forth that plaintiff was doing business under a fictitious or assumed name without filing a certificate with the secretary of the Commonwealth and its prothonotary. Plaintiffs appealed.

Errors assigned were the entering of judgment against plaintiffs, and finding that plaintiffs were doing business under a fictitious name without having filed a certificate as required by Act of June 28, 1917, P. L. 645.

Reversed.

Thomas F. McMahon, and with him Rufus B. Stone, for appellants. -- The name of plaintiffs (appellants) is neither assumed nor fictitious: Pendleton v. Kline, 24 P. 659; 85 Cal. 142; Patterson v. Byers, 89 P. 1114, 17 Okla. 633.

W. E. Burdick, for appellees. -- The case is controlled by Moyer et al. v. Kennedy, 76 Pa.Super. 523.

Before Orlady, P. J., Porter, Henderson, Head, Trexler, Keller and Linn, JJ.

OPINION

KELLER, J.

The appellant brought an action in assumpsit against the appellees. The latter filed an affidavit of defense denying the averments in the plaintiffs' statement of claim, and later by leave of court, filed a supplemental affidavit of defense, in which as " a further legal defense" it was averred that the plaintiffs were not entitled to maintain the action for the reason that they were unlawfully carrying on business, in that they had not complied with the Act of June 28, 1917, P. L. 645, making it unlawful for any individual or individuals to carry on or conduct any business under an assumed or fictitious name, style or designation unless a certificate as required by the act is filed in the office of the secretary of the Commonwealth and of the prothonotary of the proper county.

Without any proof of the averments of fact contained in the supplemental affidavit of defense the case was placed on the argument list, as if it raised only a question of law, under section 20 of the Practice Act of 1915 (P. L. 483), and the court entered judgment against the plaintiffs.

This was error. The Practice Act makes no provision for the entry of such a judgment by the court on a rule, without trial, in such circumstances and on this state of the record.

Section 20 of the Practice Act authorizes the entry of judgment by the court in favor of the defendant where the affidavit of defense raises a question of law, without answering the averments of fact in the plaintiff's statement, but the question of law so raised arises out of the facts averred in the plaintiff's statement, not out of the facts first averred in the affidavit of defense and not proven to be true. The Practice Act makes no provision for a reply by the plaintiff to the averments of fact contained in the affidavit of defense, unless they set up a set-off or counterclaim. It is only to the set-off or counterclaim thus alleged that the plaintiff must reply within fifteen days after service or have them taken as admitted (sections 6 and 15). He is under no obligation to reply to and deny the averments of fact contained in the affidavit by way of defense to the plaintiff's claim and not constituting a set-off or counterclaim, and they cannot be considered as proven so as to authorize judgment against him, but are only accepted as true to prevent summary judgment being entered against the defendant. In other words the court can say, considering the facts averred in the affidavit of defense as if proven at the trial they constitute a good defense to the plaintiff's claim and he is not entitled to judgment for want of a sufficient affidavit of defense; it cannot go further and say, we will give the facts thus averred in the affidavit the same force and effect as if they had been proven at the trial and enter judgment upon them in favor of the defendant.

The Practice Act abolishes demurrers, and directs that questions of law theretofore raised by demurrer shall be raised in the affidavit of defense as provided in section 20, but this does not mean that matters of pure defense (excluding set-off and counterclaim), raised in an affidavit of defense can be accepted as proven without a trial, so as to justify the entry of judgment in favor of the defendant. Under the Practice Act the defendant can raise any question of law arising out of the averments in the plaintiff's statement just as he could do formerly by demurrer, but without subjecting himself to the risk of judgment being entered against him if his motion is denied, which was one of the consequences of a demurrer in common law pleading; for by section 20, if ...