American Manufacturing Co. v. S. Morgan Smith Co.

25 Pa. Super. 176 | Pa. Super. Ct. | 1904

Opinion by

Smith, J.,

The direction, included in the rule to give security for costs, “ that pending the giving of such security all proceedings in the case be stayed, and that the defendant be not required to plead,” merely suspended the operation of the rule to plead until the rule for security was disposed of. When the rule for security was satisfied, the stay of proceedings during its pendency expired, and the effect of the rule to plead was restored as fully as if it had not been suspended. The residue of the time stipulated in this rule began to run when satisfaction of the rule for security was entered of record, irrespective of indorsements relative to filing; and at its expiration the defendant was required to plead or suffer a default. Neither a new rule nor a reinstatement of the pending rule was necessar}*-, nor was the defendant entitled to fresh notice. Generally, the parties are required to take notice of the disposition of interlocutory rules ; and certainly it is not too much to require a party to know the disposition of a rule entered on his own motion. The omission to fix, in a rule, a day for hearing, is chargeable to the party taking it, and he cannot complain if it puts him to inconvenience in learning its disposition. In the present case, the defendant’s counsel had knowledge of the satisfaction of the rule to give security, for a much longer period than the time stipulated in the rule to plead, but appears to have deliberately disregarded the requirement of the latter rule on the groundthat fresh notice should be given or a new rule entered. This view was erroneous, and the plaintiff was entitled to a plea or judgment at the expiration of the time stipulated in the rule to plead.

The plaintiff’s right to judgment, upon the defendant’s default, was not affected by the alleged oral agreement or understanding between the counsel. The rule of court requiring all agreements between attorneys, touching the business of the court, to be in writing, was designed to insure certainty, to prevent unseemly controversies between counsel as to the existence or the terms of an alleged oral agreement, and to avoid the necessity for a decision of such controversies that might reflect on the credibility or good faith of an attorney. Effect may be given to an oral agreement when it is admitted, but not when it is questioned. Here, since the counsel disagree as to ■its import, the alleged oral stipulation or understanding must, under the rule of court, “ be considered as of no validity,” and therefore nonexistent.

As the plaintiff’s right to summary judgment is conditioned on a declaration sufficient in law, it remains to consider the defendant’s objections on this point.

Under the Acts of May 25, 1887, section 3, P. L. 271, and March 21, 1806, section 5, P. L. 558; 4 Sm. L. 326, the declaration must consist of :

(1) A concise statement of the plaintiff’s demand ; and, in assumpsit, must particularly specify:

(2) The date of the promise, book account, note, bond, penal or single bill, or all or any of them, on which the demand is founded :

(3) The whole amount that the plaintiff believes is justly due him from the defendant; and be

(4) Accompanied by copies of all notes, contracts, book entries, or a particular reference to the records of any court within the county in which the action is brought, if any, upon which the plaintiff’s claim is founded; and a particular reference to such record, or to the record of any deed or mortgage,'or other instrument of writing, recorded in such county, shall be sufficient in lieu of the copy thereof.

In the present case, the declaration sets forth the plaintiff’s demand as founded on two particulars : (1) A sale and delivery by the plaintiff to the defendant, November 25, 1898, at defendant’s special instance and request, of 3,580 linear feet of manila transmission rope, weighing 4,225 pounds, at the rate of thirteen cents a pound, amounting to $589.25, payable, under the terms of sale, in sixty days thereafter ; (2) By the plaintiff’s servant, between the time of sale and January 16, 1899, at defendant’s special instance and request, and upon its agreement to pay the expense thereof, putting said rope on a drive installed by defendant, at an expense of $27.56 ;. and it demands, as justly payable to it by tbe defendant, $549.25, with interest from January 24, 1899, and $27.56, with interest from January 16, 1899. These matters are expressed with due conciseness, and embrace all the statutory essentials. In brief, the declaration sets forth the sale and delivery, by the plaintiff to the defendant, at a given date, of a certain quantity of merchandise, at a specified price, payable at a fixed time; the performance of a certain service, upon the defendant’s agreement to pay the expense thereof, with the date of performance and the expense incurred and the whole amount that the plaintiff believes is justly due it from the defendant. It-is not necessary to state whether a contract declared on is oral or written, even though the law requires it to be in writing ; and a statement of its terms is sufficient to show whether the defendant’s promise is express or implied.

The contention that the omission to lay a venue is a material defect overlooks some established rules of pleading. As this objection is wholly technical, it is sufficient to meet it on technical grounds. At common law, an action was triable only in the county in which it arose, and the purpose of laying a venue was to indicate the vicinage from which the jurors were to be summoned, and the county in which the issue was to be tried. But when the cause of action, alleged in the declaration,- was confessed by the defendant’s default in not pleading, there was no issue to be tried, and a venue was unnecessary; hence an omission to lay a venue was cured by this default: Gould on Pleading, 155-157. The objection may also be disposed of on substantial grounds. In .transitory actions, the venue has long-ceased to have any relation to the locality in which the action arose, or to serve any real purpose in the cause. A transitory action, wherever it may have arisen, is triable in any county in which it may be brought, by a jury drawn from the body of that county, and for the declaration to indicate this county is clearly superfluous. An averment that requires no proof, is not traversable, and is wholly immaterial, is not essential to a concise statement of the plaintiff’s demand; and our legislation in the direction of simplicity in pleading, while specifically defining the requisites of a declaration, has not included among them the fiction of averring the action to have arisen in the county in which it is brought. Even at common law, an immaterial averment, which may be separated from, the principal fact without prejudice to the substantive cause of action, requires no proof. (1 P. & W. 387.) Nor is there anything in this case from which a necessity for this averment is to be implied. As eliminated from the statutory requirements, upon the maxim, “ expressio unius est exclusio alterius,” and as a dead leaf on the tree of technicalities in pleading, it may well he allowed to drop from our present system, with other superfluous phrases.

The objections relative to the assignment of the claim to the use plaintiff are without foundation. It is unnecessary to show, in the declaration, the title of an equitable plaintiff, or to indicate his interest otherwise than by marking the suit to his use. The right to recover is founded on the claim of the legal plaintiff, and whether this right remains in him or has passed to an assignee is immaterial. The cause is to be tried without relation to an equitable plaintiff, unless an issue is raised between such plaintiff and the defendant; as when a defense is set up which, while good against the legal plaintiff, cannot be made against the equitable plaintiff, or the defendant alleges a defense or a counterclaim against the latter which would not avail against the former: Berks County v. Levan, 86 Pa. 360; Crawford v. Stewart, 38 Pa. 34.

Nothing in the assignment of error requires further discussion.

The order making absolute the rule to strike off the judgment is reversed, and the rule is discharged.