Ashman v. Weigley

148 Pa. 61 | Pa. | 1892

Opinion by

Mr. Justice Heydblck,

The procedure act of 1887 made a material change in the affidavit of defence law. By its express terms the plaintiff’s statement, which takes the place of a common law declaration, must, in the action of assumpsit, be replied to by affidavit. Hence, whatever averments therein contained are not denied must, upon a rule for judgment in default of a sufficient affidavit of defence, be taken as admitted. In the present case the plaintiff’s statement is concisely drawn and sets out a good cause of action. It “avers that there is justly due to him (the plaintiff) by the defendant, Mary F. Weigley, the sum of $215.61, and interest from Nov. 8,1890. The said amount is due for paper hangings, mouldings, scraping walls, tinting centre-piece, hanging paper, putting on moulding and brackets, at 2226 Trinity Place, at the request of the said Mary F. Weigley, from Oct. 3, 1890, to Nov. 8, 1890,” and that a copy of plaintiff’s book of original entries of the work and material is annexed. To this statement is annexed an account headed “Mrs. Weigley, Dr.,” containing a large number of items making up the sum of 1215.61, claimed by the plaintiff. The affidavit of defence does not deny a single averment in the statement, or that any one of the items contained in the account was chargeable to her. It must, therefore, be taken as admitted that the sum claimed is due from the defendant to the plaintiff for and on account of the several items of the labor and materials specified in the account. What the affidavit of defence does aver is, that the items contained in the account were originally charged to or against one Mr. Weisley, and that many days thereafter the name was changed to “ Mrs. Weigley.” These averments must also be taken to be true. The necessary inference from the several averments of the statement and affidavit of defence thus assumed to be true is, that the original charge to “ Mr. Weisley ” was a mistake. But it cannot be supposed that by such mistake the plaintiff would lose his right of action against the person to whom, and at whose request, he furnished his materials and labor. There is nothing in Fritz v. Hathaway, 135 Pa. 274, relied upon by the appellant, to justify the contention that a mere mistake in charging goods to the wrong person would discharge the real debtor. In that case the copy of the book account, which was said to be a necessary appendix to the statement, did not, upon its face, import a liability on the part of the defendant, and there were no such “ categorical averments ” as cured that defect.

The further averments in the affidavit of defence that the plaintiff had, in a former suit, filed a copy of his book of original entries, in which the several items claimed in this suit were charged against William W. Weigley and Mary F. Weigley, and that he had filed a mechanics’ lien in which the same items were charged against William W. Weigley and Mary J. Weigley, are not responsive to the plaintiff’s statement, since it does not appear that the account was chargeable to these persons, or that any part of it was recovered from them. Presumably these were abortive attempts to collect the debt which this defendant owes. If she was not indebted to the plaintiff as claimed in the statement, it would have been easy to say so. No denial of the indebtedness clearly and concisely set out in • the statement being made, the rule for judgment was properly-made absolute.

Judgment affirmed.