Fritz v. Hathaway
Fritz v. Hathaway
Opinion of the Court
Opinion,
The affidavit of defence called attention to the fact that the contract, as appeared on the face of the book account, had been completed more than six years before suit brought, and averred that defendant had made no new promise. This distinctly set up the bar of the statute of limitations, and was a good defence against summary judgment.
But the statement itself is too defective to sustain the judgment. In the first place, it sets out that the “ action is founded on a book account or entry, a copy of which.....accompanies this statement,” etc. But the copy does not charge the
But there is another equally serious defect in the statement. The action is averred to be founded on the book entries, and they were more than six years old when the writ issued. The plaintiff endeavors to avoid this apparent bar of the statute of limitations by the brief averment that the amount so charged “ became due and payable ” at a subsequent date. But how or why it did not become due till then is not explained. If the book entries are the only foundation of the action, then they are manifestly insufficient to keep the claim alive more than six years from the date of the last item. If, however, a special agreement is relied upon, it should be set out. Suppose the position of parties to be reversed. Suppose plaintiff had brought this action on May 25, 1888, and defendant had filed an affidavit of defence that the money was not due until June 15th; it is clear on all the authorities that the affidavit would have been held bad for not setting out the reason, and, if it
It is said that these objections were not made in the court below, and therefore should not be heard here. But the specifications of error raise the question of the sufficiency of the statement; and, as there are no pleadings on a rule for judgment, there is nothing in the record before us to show whether the particular objections now insisted on were urged in the court below or not. But, even if in fact they were not, it would make no difference, because a judgment for want of a sufficient affidavit of defence is, in effect, a judgment on demurrer, and,- like all such judgments, must be self-sustaining on the face of the record.
It is not always possible to determine whether an affidavit of defence is skilfully drawn to suggest a defence without really swearing to it, or, on the other hand, whether the statement is with equal skill worded so as to avoid a defence, such as the plain bar of the statute of limitations. In such cases the court of original jurisdiction has advantages that we have not, in the liberal use of its power to allow amendments and supplemental affidavits. It is not yet too late for the exercise of such powers in this case: Jones v. Gordon, 124 Pa. 263. But it would be
Judgment reversed, and procedendo awarded.
Reference
- Full Case Name
- C. P. FRITZ v. I. H. HATHAWAY
- Cited By
- 36 cases
- Status
- Published
- Syllabus
- 1. In an action of assumpsit upon a book account, when all the charges in the copy of the account, filed with the statement of claim, bear date more than six years prior to suit brought, an affidavit of defence calling attention to that fact, and averring that the defendant has made no new promise, sufficiently sets up the statute of limitations. 2. The copy of ¡1 book account required by the Procedure Act of May 25, 1887, P. L. 271, to be filed with the statement of claim in a suit thereon, is only an appendix or exhibit, which may be helped out by averments in the statement; so that a failure to name the defendant in the copy filed is not a fatal defect upon a motion for judgment for want of a sufficient affidavit of defence. 3. The copy, however, is a necessary appendix or exhibit to the statement of claim by the express terms of the act of 1887, under which a correct copy of the book entries is required; and the fact that the copy filed is such, should be made to appear, either upon its face or by categorical averment in the statement. 4. When the book entries, a copy of which is filed, all bear date more than six years prior to the issue of the writ, an averment in the statement of claim that the amount of the account became due and payable within the six years, without explaining how or why the charges did not become due at their date, is not sufficient to avoid the bar of the statute of limitations. 5. The completeness, as to essential facts, which has always been required in an affidavit of defence, is required equally in a statement of claim under the act of May 25, 1887, P. L. 271 ; its spirit plainly requires that every contract or agreement upon which the claim in any manner depends, though in parol, shall be averred in the statement with accuracy and precision.* 6. A judgment for want of a sufficient affidavit of defence is in effect a judgment on demurrer, and, like all such judgments, must be self-sustaining on the face of the record; and hence the fact that the sufficiency of the statement of claim may not have been objected to below, is not a reason why it should not be regarded in the Supreme Court; after a reversal, however, the court below may allow amendments.