234

TED

INDEX OF CASES REPORTED

ter which would have been immediately cor- from sufficient information acquired from
rected or explained if called to the attention reliable sources, is enabled to swear to the
of the court at the proper time.
truth of the facts constituting the alleged
defense to the plaintiff's claim, and to aver
that he expects to prove them at the trial
of the case.

Practice-Laches.

The question of laches does not depend,
as does the statute of limitations, upon the
fact that a certain definite time has elapsed
since the cause of action has accrued, but
whether, under the circumstances of the
particular case, plaintiff is chargaeable with
want of due diligence in failing to institute
or prosecute his proceeding.

Under the Act of June 26, 1895, P. L. 316,
a mother who contributes by the fruits of
her own labor "or otherwise" toward the
support, maintenance and education of her An affidavit of defense in an action against
minor child, may maintain an action to re- The Northern Assurance Company of Lon-
cover for loss of services of the child result-don, which as merely signed "Northern As-
ing from the negligence of another. The surance Company of London by A. G. Mar-
rights of the mother under this Act are not tin" was clearly insufficient to meet the re-
contingent on the death or desertion of the quirements of the decisions, even with the
father; nor is it necessary that she support added allegation in the jurat that he is the
the child from her own earnings.
"U. S. Manager of the Company defendant."
-SMITH V. PEOPLES COAL CO., 2
An affidavit of defense on behalf of a cor-
poration, which shows that it was imprac-
ticable for an officer of the corporation to
have made the affidavit; that the person
who made the affidavit is the manager of
the defendant's business where the cause of
action arose; that he was duly authorized
in writing to make the affidavit for and in
the name of the corporation; that, in ac-
cordance with his duty and authority, he
caused the facts of the case set forth in the
The plaintiff was injured on December 17, plaintiff's statement to be carefully inves-
1914; on August 18, 1915, he brought an tigated by competent persons; that the re-
action in the court of common pleas of Al-sult of said investigation was gone over and
legheny county to recover damages for the carefully examined by him; that he has
injuries sustained; a motion was made to
dismiss the suit; while this motion was
pending, on December 15, 1916, suit on the
same grounds was brought in the court of
common pleas of York county; on January
29, 1918, the action in Allegheny county was
dismissed; on December 29, 1918, plaintiff
filed his statement in his action in York
County; the defendant filed an affidavit of
defense averring that the plaintiff was
guilty of laches in the prosecution of his
action; Held; that plaintiff was not guilty
of laches, and that it was an error for the
court below to enter judgment of non pros.

knowledge of the facts from his own inves-
tigation of the papers in the case and the
report of said investigation; that the allega.
tions in the affidavit of defense are true to
the best of his knowledge and belief; and
that he expects to be able to sustain the al-
legations of said affidavit of defense by com.
petent legal evidence, and to prove the facts
alleged, at the trial, was Held sufficient to
meet the requirements of the decisions as to
the quallifications of the affiant to make the
affidavit for the defendant corporation.

Judgment for want of an affidavit of de-
fense, or of a sufficient affidavit, is a judg-
ment by default, and so long as judgment
for such default has not yet been entered,
an affidavit, or a supplementary affidavit may
be filed.

Our statutes relating to amendments of
pleadings, are liberal in their scope and in-
tent, and they have been construed and ap-
plied by our courts in a like spirit, so that
amendments are usually allowable at any
stage of the proceedings prior to judgment,

Practice Affidavit of defense
Amendment-Sec. 12 of Practice Act of upon such terms as will protect the rights
1915, P. L. 483.

of the opposite party.

Section 12 of the Practice Act of 1915 After motion for judgment for want of a
does not change the rule laid down in the sufficient affidavit of defense, the court
earlier cases that where the defendant is a granted leave to amend the affidavit of de-
corporation, the affidavit of defense must fense, where the original affidavit contained
be made by an officer of the corporation | sufficiently specific and direct denials of ma-
having personal knowledge of the matters terial allegations of fact on which the plain_
of defense therein contained, of che whole c'a'm is founded to require a jury trial

of the issue raised by the pleadings, so as to
show the affiant's qualifications to make the
affidavit.

-NOLL V. NORTHERN ASSURANCE CO., 61

Practice-Joint contract-Suit by trus-
tees for parties plaintiff.

A joint contract gives a right of joint ac-
tion, not a separate action by each of the
parties jointly interested; but there seems
to be no principle of law which forbids a
number of parties jointly concerned in a con-
tract to permit one of them to represent all
and act for all in suing for their joint rights.
so long as the record protects the defendant
against a multiplicity of suits.
-RICK, TRUSTEE, V. BELL, 96

Practice-Judgment on questions of

It is not sufficient to allege in the state-
ment that proofs of the items of the plain-
tiff's claim will be offered at the trial. The
items intended to be proven must be set
forth in the statement itself.

A plaintiff's statement which avers the
writing and sending of a letter containing
a proposal, without also averring the receipt
of the letter and the acceptance of the pro-
posal, does not sufficiently aver a contract
entered into by correspondence between the
parties. It should also state whether the
acceptance was verbal or written and if
Written, a copy of the same should be set
forth in full.

A plaintiff's statement which contains ma-
terial averments in the alternative is de-
fective, and will be stricken off.

A plaintiff's statement which sets forth

law-Judgment for want of a sufficient the aggregate amounts of the different kinds

affidavit of defense
affidavit of defense.

Supplementary

Where the pleadings show that certain
items of the plaintiff's claim are recoverable,
a general judgment can not be entered for
the defendant, on questions of law raised by

the affidavit of defense.

Where the court finds from the pleadings
that certain items of the plaintiff's claim
are not collectible, the plaintiff is not en-
titled to a general judgment against the de-
fendant on the questions of law raised by
the defendant's statutory demurrer.

Judgment for want of a sufficient affidavit
of defense can not be entered against a de-
fendant at the time the court rules against
him on the questions of law raised by the
affidavit of defense, because the defendant
then has fifteen days within which to file
a supplemental affidavit of defense.
-NEW HELLAM DISTILLING CO. V. TRATTNER
ET AL, 97

Practice-Practice Act of 1915. P. L.
483-Plaintiff's statement-Striking off
plaintiff's statement - Alternative aver-
ments Particulars - Items Dam-
ages.

of damages sustained, and the total of cred-
its allowed, in a series of lump sums, with-
out giving the items or particulars thereof,
is defective. The items of damages intend-
ed to be proven, and of the credits to be al-
'owed, must be set forth in the statement,

which must, under the present practice, be
a bill of particulars in itself.

A general claim of $25,000.00 for loss of
orofits is not permissible under the Prac-
tice Act Nineteen Fifteen. The alleged
losses should be itemized, and the business
transactions in which they occurred speci-
fied, and such other facts sets forth, as will
show that such losses are recoverable as
damages in this case, under the authorities
on that subject.

-MOON MOTOR CAR COMPANY
MANUFACTURING COMPANY, 98

V. VICTOR

Practice Practice Act of 1915
Plaintiff's statement-Lessee of safe de-
posit box-Negligence.

1. The Practice Act of 1915 makes every

statement of claim of the same effect as a

bill of particulars, and in an action for neg-
ligence the statement should set forth the
particulars of the negligence charged.
2. The rule that the particulars of the
The object of the Practice Act of 1915, Pnegligence complained of need not be set
L. 483, and prior procedure acts requiring out with such precision where the facts lay
itemized details in the pleadings themselves in the knowledge of the opposite party as
is to fully inform the opposite party of the much or more than in that of the party
same, so that he may admit what is not pleading is not changed by the Practice Act
really in dispute, and thereby limit the is-
sues of fact, and shorten the length, and re-

of 1915.

3. The proper method of raising the ques-
duce the costs of, the trail. These require-tion of sufficiency of a statement of claim,
ments have been extended by the Practice considered as a bill of particulars, is by a
Act, Ninteen Fifteen, from the statement motion to strike off, under Section 21 of the
and the affidavit of defense to the counter
Practice Act, and not by demurrer under
claim, and the answer thereto, when one is Section 20.
filed.

-ENLOW V. FIRST NATIONAL BANK, 110

After the defendant had filed an affidavit

Practice-Practice Act of 1915, P. L.
483-Motion to strike off plaintiff's state-of defense and the court had refused plain-
ment-Exhibits.

Under the Practice Act of 1915, P. L. 483,
there are only two methods of attacking a
statement of claim: Section 20 prescribes
the method of attack for defects of law;
Section 21 for informality of pleading.
Section 20 requires that the questions of law
be raised by the defendant in the affidavit
of defense, and it may be done without an-

swering the averments of fact in the state-
ment of claim. Section 21 requires a motion.

A motion to strike off a plaintiff's state-

ment may be filed after the filing of an affi-

davit of defense raising questions of law
only.

A plaintiff's statement is sufficient, which
avers that, pursuant to a verbal contract,
the plaintiff sold and delivered to the de-
fendant certain goods, wares and merchan-
dise, on the dates, of the character and
quantity, and at the prices shown by an ex-
hibit, which is clear and intelligible, at-
tached to and made part of the statement.
Where a plaintiff's statement avers that
certain items of goods sold and delivered to
the defendant were in accordance with a
blue print furnished, and a letter written

by the defendant, it is not necessary that
copies of the blue print and of the letter be

attached to the statement.

Where a plaintiff's statement avers that
certain goods were sold, by verbal agree-
ment, to the defendant, at prices indicated,
it is not necessary to aver that the prices
charged are reasonable, or the usual charge,
or a fair market price.

-STANDARD METAL M'F'G. CO. V. AMERICAN
INSULATOR CO., 117

tiff's motion for judgment for want of a suf-
ficient affidavit of defense, and after the
case had been put on the list for trial, it
was clearly too late for the defendant to
move to strike off the statement for merely
formal defects.

-NOLL V. DUBUQUE FIRE AND MARINE IN-

SURANCE CO., 137

Practice on appeal from magistrate-
Failure to pay costs or give bail-Appeals
nunc pro tune-Laches-Motion to per-
L. 188; May 29, 1907, P. L. 306.
fect appeal-Acts of March 20, 1845, P.

The failure to give recognizance or pay
the costs on an appeal from a justice of the
peace renders the appeal nugatory, and after
the period of twenty days has elapsed, the
appellant's only remedy is by a rule to show
cause why an appeal should not be allowed
nunc pro tunc.

The allowance of
pro
an appeal nunc
tunc is within the discretion of the court
and it will not be granted when appellant has
been guilty of laches. The appellant's fail-
ure to perfect his appeal when he had
knowledge of its defect for ten days before
the twenty days for taking such appeal had
elapsed, constitutes such laches as will de-

-C. F. PHILLIPS V. ELMER KANAAN, 153

Practice C. P.-Practice Act of 1915.

Practice-New trial-Judgment n. o. v. Sec. 9-Plaintiff's statement in action on

Where both parties ask for a new trial
and judgment non obstante veredicto, it is
not imperative upon the
Court to grant
either application.

Where, after trial and verdict, it appears
upon an examination of the record that the
questions involved were not clearly under-
stood at the trial, or adequately explained
to or apprehended by the jury, a new trial
will be granted.

-CARROLL ET AL. V. WITMAN, 124

Replevin.

An action upon a book account is not an
action upon an express agreement, either
oral or written, and, therefore, does not fall
within the provisions of section 9 of the
Practice Act of 1915 requiring that in actions

on contracts the statement of claim shall
state whether the contract was oral or in
writing.

-HINE V. HORN, 178

Practice, C. P.-Appeal to Superior

Practice Motion to strike off state-, Court Execution-Supersedeas-Act

ment.

He who would take advantage of, or ex-
cepts to technical and formal defects in

12 May, 1897, P. L., Sec. 2.

-SCHLIPPERT V. ORTH, 38

New trial Fictitious name

Tech-

pleadings, must do so promptly, in limine, nical grounds raised after verdict―Judg-
and he can not, after putting his case at is-ment n. o. v.--Act of June 28, 1917. P. L.

sue on its merits, go back and attack his
opponent's earlier pleadings for formal de-
fects therein.

645.

-HOFFMAN BROTHERS V. YORK TOOL AND
MACHINE WORKS, 84

This rule also applies in cases where the
boundary fixed in the deed is a private lane,
alley or road.

Where the boundary of the plaintiff's land

Negotiable instrument-Action on lost was described in her deed as extending “to
note-Practice.

-STAGEMYER V. LINK, 64

Contracts

Commission on sales

the west side of Spring Avenue, thence along
said Spring Avenue," &c., said boundary was
held to extend to, and thence along, the mid-
dle of said avenue, and judgment for plain-
tiff for damages for plowing up the same.
was affirmed.

l'endor and vendec Assumption of
debts of vendor Vendee of business
may be sued directly for breach-Prac-|-DANNER V. ELLIOTT, 205
tice Act of 1915-Account.

V. NEW
KENTUCKY DISTILLING CO., 147

YORK &

Rail-

Common carriers — Contracts
road companies Bills of lading
Waiver of provisions--Practice, C. P.
Suit against wrong person--Practice, C.
P.--Plaintiff's statement Requisites
Practice Act of 1915.

-SADLER V. DIRECTOR GENERAL OF

ROADS, 99

PRESUMPTIONS.

Decedents' estate

RAIL-

Distribution-Ab-

Real estate Boundaries Title to
streets and roads named as boundaries-

REMOVAL OF CAUSES.

Removal of Cause-Diversity of citi-
zenship-Record, verity of.

An action brought in a state court will not
be removed, on the ground of diversity of

Action of trespass for plowing up a road, citizenship of the parties, to a United States
cutting down trees along the same, and
obstructing a right of way.

district court of a district of which neither
the plaintiff nor the defendant is a resident.

Applications for the removal of causes
from state courts to United States district
courts must be disposed of on the status of
the record. The record imports absolute
verity, and can not be successfully im-
peached by allegations in the petition for
removal contradicting the record, merely be-
cause the allegations are not denied by other
parties to the suit.

An action brought in a state court will not
be removed to a United States district
court, on the ground of diversity of citizen-

ship, upon the petition of a defendant which SALES.
avers that he was a "resident," but which
fails to aver that he was a "citizen" of a

Sales-Vendor and vendee - Machine

state, other than that of which the plaintiff sold to be "satisfactory"-Time when

was a citizen, when the suit was brought.

vendee to be satisfied-Evidence.

Where a vendor gives a receipt for the
purchase money for a traction engine, which
receipt contains the words "tractor has to be
satisfactory or money will be refunde2,"
these words are part of the contract and en-
forceable as such, and such stipulation being
silent as to the time when the vendee was to

An action pending in a state court, in
which two of the defendants are residents
of the state in which the action is pending,
can not be removed to a United States dis-
trict court, upon a petition of a third de-
fendant, on the ground that the plaintiff and
the petitioner are residents of different
states, both of which are other than that in decide whether it was satisfactory parol evi-
which the action is pending.
-HARDINGE V. KUNTZ ET AL., 121

REPLEVIN.

Plaintiff's state:nent-Amendment of,
in replevin.

SO

A plaintiff may amend his statement
long as the amendment does not introduce a
new cause of action. This rule applies to
actions of replevin as well as all other ac-
tions.

In an action of replevin for an auto truck
the statement may be amended SO as to
change the number of the truck and to show
that the party who sold it to the plaintiff
was acting as the representative of a third
party named and not personally as alleged
in the original statement.

Amendments to statements need not be
sworn to.

-ATLANTIC MOTOR TRUCK CO. V. KACHEL, 108

Replevin-Lien for services-Affidavit
of defense-Sufficiency of Bond and
counter bond-Act of April 19, 1901, P.
L. 89.

dence is admissible to show the intent of the
parties as t such time.

In such case, it having been shown that
the vendee was satisfied with the tractor at
a test made on a certain date as agreed upon,
he could not subsequently reject it, and a
rule to open judgment entered for the pur-
chase money should be discharged.
-BURKHOLDER V. HESS, 17

Contracts-Sales by agents-Payment
to agent-Authority to receive money.

Where an agent has not the possession of
the goods and no other indicia of authority,
and is authorized only to solicit orders or to
take contracts to submit to the principal for
approval, he has n implied power to colect
at any time, and the purchaser makes pay-
ment to him at his peril.
—SHEPPARD-STRASSHEIM CO. V. DiMARTE, 207

Sale-Goods partly inferior - Rights
of purchaser-Return of part of goods-
Affidavit of defense - Allegation as to
prompt return.

A vendee who is dissatisfied with part of a
In replevin for a horse, an affidavit of de-
fense is insufficient which avers that the quantity of goods purchased may either re-
plaintiff is indebted to the defendant for the tain all and claim a deduction, or return all,
care and keep of the horse and that he re- but he cannot, unless his contract specific-
tained it on that account, and judgmentally so provides, return only those alleged to
should be entered for the plaintiff for the bc inferior to the sample and retain the
others, and in a suit for the price an affi-

horse.

The plaintiff may recover the property by
writ of retorno habendo, or the value there-
of after assessment of the damages, on a
writ of inquiry, under Sec. 5 of the Act of
April 19, 1901.

A defendant in replevin who claims a lien
on the goods for work done, cannot give a
counter bond and retain possession. His
claim is protected by the plaintiff's bond or
by a conditional verdict under Sec. 6 of the
Act of April 19, 1901.

-H. H. MOORE V. MORRIS WILSON, 151

Bailment Rental payable in instal-
ments-Interest on rental-Default in
payment of instalments-Waiver of de-
fault--Replevin.

-AUTOMOBILE FINANCE CO. V. SLOAN, 128

davit of defense is insufficient which claims
credit for the part of the order returned.

A buyer who is dissatisfied with goods
must promptly return them, and after a
reasonable time for inspection will be pre-
sumed to have accepted them. In a suit for
the price, the averment in the affidavit of
defense that the goods alleged to be of in-
ferior quality were promptly returned is suf-
ficient without giving the date of the return.
-BEN FELSENTHAL & CO. V. S. KURTZ ZOOK
161

Affidavit of defense-Insufficient de-
nial of facts-Sale-Gambling device-
Purchase price-Judicial notice.

-S. K. BITNER & CO., INC. V. H. T. WARFEL,
204