Fritz v. Hathaway

• Decision Date: 26 May 1890
• Docket Number: 69
• Parties: C. P. FRITZ v. I. H. HATHAWAY
• Court: Pennsylvania Supreme Court

19 A. 1011

135 Pa. 274

C. P. FRITZ v. I. H. HATHAWAY

No. 69

Supreme Court of Pennsylvania

May 26, 1890

Argued March 26, 1890

APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS NO. 1 OF PHILADELPHIA COUNTY.

No. 69 January Term 1890, Sup. Ct.; court below, No. 521 1/2 June Term 1889, C.P. No. 1.

On June 11, 1889, Christian P. Fritz brought assumpsit against I Hayes Hathaway, and on June 20, 1889, filed the following statement of claim, verified by his affidavit:

"The above-stated action is founded on a book account or entry, a copy of which taken from plaintiff's book of original entries, made on or about their respective dates, accompanies this statement as a part thereof; and the plaintiff avers that the charges there made were intended as a personal charge against said defendant, by virtue of a special agreement made with him by said plaintiff.

"The dates of the book entries are between May 10, 1883, and May 24, 1883, inclusive, and the whole amount justly due the plaintiff from said defendant is two hundred and five dollars, with interest thereon since June 15, 1883, at which time the plaintiff avers the amount so charged on his book became due and payable to him by said defendant."

Appended to the statement of claim was an account headed "Plaintiff's Copy of Book of Original Entries." The defendant was not named therein. It consisted simply of a number of entries bearing date in May, 1883, all substantially in the following form:

"1883 May 10. To 6-horse team one day hauling piles from Allen McCullow's to Phila. & Chester Co. R.R., $15.00"

The defendant filed an affidavit of defence as follows:

"I Hayes Hathaway, the defendant in the above suit, being duly sworn, doth depose and say that he has a just and legal defence to the whole of the plaintiff's claim, to wit:

"That suit was not commenced to recover within six years from the completion of the contract. That he has not at any time either by himself, his agent or attorney, made or entered into any new promise to pay the plaintiff the amount claimed to be due and payable upon the completion of the contract, to wit, May 24, 1883. That proceedings to recover were not commenced until June 11, 1889, a period of six years and over from May 24, 1883. All of which the defendant believes to be true and will prove upon the trial of the cause."

Subsequently, by leave of court, the following supplemental affidavit of defence was filed:

"I. Hayes Hathaway, being duly sworn according to law, deposes and says that he, the defendant, never agreed, as averred in plaintiff's statement, to pay the sum of two hundred and five dollars with interest, either on June 15, A.D. 1883, or any subsequent date, and has made no contract of any kind or nature with plaintiff, and has had no dealings with plaintiff since May, 1883. And defendant further says, he is not indebted to plaintiff in any amount."

On October 12, 1889, the court, without opinion filed, made absolute a rule for judgment for want of a sufficient affidavit of defence, and entered judgment for the plaintiff for $282.13. Thereupon the defendant took this appeal, specifying that the court erred:

1. In entering judgment for the plaintiff.

2. In entering judgment for the plaintiff, because the copy of book entries filed does not contain any charge against the defendant.

3. In entering judgment for the plaintiff, because the copy of book entries filed shows that the action was not commenced within six years from the completion of the hiring.

Judgment reversed, and precedendo awarded.

Mr. Robert H. McGrath (with him Mr. John MacDonald), for the appellant:

1. The plaintiff was not entitled to judgment on the statement of claim filed. The copy of his book entries does not charge the defendant nor any one else, and therefore it does not call for an affidavit of defence. The omission is fatal and cannot be supplied by averments in the statement of claim, the test being whether or not the book entries would be competent to go to the jury as evidence of the plaintiff's claim: Wall v. Dovey, 60 Pa. 213. This rule is not altered by the Procedure Act of May 25, 1887, P.L. 271. Under it the book entries are still the foundation of the plaintiff's claim, as they were before, and the statement of claim is merely substituted for the narr.

2. Without the copy of the instrument, which is the foundation of the action, the case is not brought within the affidavit of defence law; and, therefore, the copy filed must be such as to entitle the plaintiff to judgment. Again; the action was clearly barred by the statute of limitations. There is no averment of any special contract or time credit which would change the maturity of the claim from the date of the last item, May 24, 1883, nor are the terms of any such contract set out, and the suit was not brought until June 11, 1889. In view of these facts, and in view of the defendant's denials that he had any dealings with the plaintiff after May, 1883, that he agreed to pay the claim on June 15, 1883, or that he is indebted to the plaintiff in any amount, the judgment was erroneous.

Mr. Samuel Hinds Thomas (with him Mr. Henry Pleasants), for the appellee:

1. The statement of claim contains distinct averments of the amount due and of the dates, as required by the statute, and also a copy of the book entries. The essential feature of the statement, that the original indebtedness did not mature until June 15, 1889, is nowhere met by the defendant's affidavits. A denial that the defendant agreed to pay $205 with interest, does not meet an allegation that he agreed to pay $205 without interest. Had the defendant questioned the sufficiency of the statement of claim in the lower court, his objection, if deemed of importance, could have been met by an amended statement, requiring a new affidavit: Jones v. Gordon, 124 Pa. 263. This court has uniformly declined to consider objections not made in the court below: Erie City v. Schwingle, 22 Pa. 384.

2. The general denial of indebtedness in the supplemental affidavit is too indefinite to prevent judgment: Peck v Jones, 70 Pa. 83. Cases decided under the old affidavit of defence law are not applicable here, because that law has been superseded by the act of May 25, 1887, P.L. 271: Marlin v. Waters, 127 Pa. 177. Under the act of 1887, if the averments of the statement of claim are sufficient, and are not denied by the affidavit of defence, the latter is insufficient: Gould v. Gage, 118 Pa. 559; Byrne v. Hayden, 124 Pa. 170; Hubbard v. Tenbrook, 124 Pa. 291. In the light of these decisions, it matters not whether the book entries...