Hutchinson v. Woodwell

• Citation: 107 Pa. 509
• Court: Pennsylvania Supreme Court
• Decision Date: 05 January 1885
• Parties: Hutchinson <I>versus</I> Woodwell, Chairman, etc.

107 Pa. 509

Hutchinson versus Woodwell, Chairman, etc.

Supreme Court of Pennsylvania.

November 3, 1884.

January 5, 1885.

November 3d, 1884.

Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, and CLARK, JJ. STERRETT and GREEN, JJ., absent

ERROR to the Court of Common Pleas No. 1, of Allegheny county: Of October and November Term, 1884, No. 133.

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Isaac S. Van Voorhis, for the plaintiff in error.—1. It was the intervention of the law, not any default of Vaters & Co. which caused the miscarriage of the contract in question, and their subsequent failure. The Act of June 20th, 1883, while not in express words rendering the manufacture and sale of convict made goods illegal, yet reaches the same result, by compelling a brand of infamy, "convict made," to be stamped upon them. It rendered the sale of the goods in this case impossible. It is a result brought about by the act of the law and beyond the control of either Vaters & Co. or their surety, and ought to be relieved against: Bailey v. De Crespigny, L. R. 4 Q. B. 180.

2. The matter averred in the sixth section of the affidavit of defence is sufficient to prevent judgment; the creditor had the property of the principal within his own hands, with an express contract as well as a legal duty to avail himself of that means of satisfaction; failing so to do, but misapplying the proceeds to a different matter, the surety is discharged: Clow v. Derby Coal Co., 2 Out. 432.

3. The contract sued upon — a surety bond, not a guaranty — was not an instrument for the payment of money, but to secure the compliance by the principal, with the terms of a contract, and the damages, if any, could only be liquidated by a jury. The case was, therefore, not within the affidavit of defence rules: Borlin v. Com'th, 3 Out. 42; Boas v. Nagle, 3 S. & R. 253; Strock v. Com'th, 90 Pa. St. 272.

4. The affidavit of claim filed in this case was incurably defective in that it was sworn to not by the plaintiff or his agent, but by a stranger who, so far as appears by the record, is a mere volunteer.

If such an affidavit of claim is made by an agent of the plaintiff, (which the rule permits) the fact of such agency should, we submit, in some way appear of record. It is true this matter escaped the attention of counsel in the court below, otherwise the rule for judgment would, no doubt, have been discharged; for in a very recent case, his honor STOWE, P. J. (who made absolute the rule in this case), has given to the rule of court in question even a more strict construction than is here urged, as follows: "The affidavit of claim was sworn to by the affiant as agent in this behalf, of the plaintiff. This will not do and does not come within the rule of court. A party cannot deputize another to swear for him either generally or specially. What the rule means is that the plaintiff's agent in regard to the matter out of which the action arose may make the affidavit and not some one he may state his case to and get to swear to his claim. . . . . . Rule discharged." Baum v. Pittsburgh Locomotive Works, C. P. No. 1 of Allegheny Co. 1884. But it is not fatal to us that this defect is raised here for the first time, for it has been expressly decided that in order to entitle a plaintiff to a judgment for want of a sufficient affidavit of defence under a Rule of court, he must have complied with all the requirements of the rule, and if it appears that he has not done so, a judgment entered in his favor is erroneous; and an omission to raise such objection in an affidavit of defence does not preclude defendant from urging it on error: Gottman v. Shoemaker, 86 Pa. St. 31; Strock v. Com'th, 90 Pa. St. 272.

5. The surety was discharged at least pro tanto, and by reason of the plaintiff's modification of the contract, without the knowledge of the surety, by accepting promissory notes instead of cash from the principal, thereby giving time: Clippinger v. Creps, 2 Watts 48; Craig v. Schallcross, 10 S. & R. 377.

A. Israel (Joseph Cohen with him), for defendants in error.— 1. The Act of 1883 might or might not have resulted in diminishing Vaters & Co.'s profits, but it certainly did not render impossible the performance of their contract, and their failure to comply with it cannot be excused upon that ground.

2. The Pennsylvania Reform School was not compelled, under sec. 10, or any other part of said contract, to retain in its possession the goods and machinery of Vaters & Co. at the time of default, and hold the same as a pledge. It could sue for the amount due by virtue of said contract, and after judgment obtained, issue execution for the collection of the amount so due. Nothing contained in the contract deprived the Pennsylvania Reform School of its rights to legal process for such purpose. The issuing of execution and sheriff's sale thereunder did not, therefore, constitute any violation of the contract on part of Pennsylvania Reform School, but on the contrary was a compliance with the general rule of law as stated in Clow's case, 2 Out. 432.

3. The technical defect alleged in the affidavit of claim cannot avail. The plaintiff below is a corporation. It was represented in this suit by the affiant in said affidavit. There is nothing contained in the record of this case to show that said affiant was not the proper person to make the affidavit. Any such objection should have been raised by plaintiffs in error in the court below, and the same offered to be proven as a fact. The truth of the objection certainly did not appear upon the face of the affidavit in the court below, nor does it now appear in any part of the record. The case of Gottman v. Shoemaker, 86 Pa. St. 31, cited by plaintiffs in error, was an action of covenant on a mortgage in which judgment had been taken for want of sufficient affidavit of defence. The rules of court required the filing, by the plaintiff, of a copy of the instrument sued on, or a reference in the præcipe or narr., to the office, book or page where the same could be found of record. No copy had been filed, and neither narr. or præcipe contained such reference. This, of course appeared to the court upon review of that case, and your Honors very properly said that "an omission to state in the court below an objection so clearly shown by the record does not preclude the plaintiffs in error from urging it now as a ground of objection to the judgment."

4. The plaintiff in error being a surety, an action could be brought against him in the first instance without pursuing the principal to insolvency, hence if, as alleged, our original suit against Vaters & Co. were not on the contract (which we do not admit) it would in no way affect the status of this suit.

Chief Justice MERCUR delivered the opinion of the court, January 5th, 1885.

This judgment was entered for want of a sufficient affidavit of defence.

The first question is, was the plaintiff below entitled to a judgment, if no affidavit of defence had been made? If he was not, the judgment for want of a sufficient affidavit of defence must be...