Blue Valley Creamery Co. v. Zimmerman

60 Pa. Super. 278 | Pa. Super. Ct. | 1915

Opinion by

Trexler, J.,

To entitle the plaintiff to judgment his statement must show a complete cause of action. An examination of it convinces us that there is sufficient alleged to support the judgment. It is a concise statement of the plaintiff’s demand, showing the subject-matter of his claim, and the dates and the amounts and it is accompanied by a copy of the book account., The book account is stated in abbreviated language, but taking the whole of the statement, it cannot be seriously contended that the nature of the plaintiff’s claim is not disclosed in every essential particular, or that it is unintelligible. Anyone reading it can readily know that the plaintiff sold a certain number of pounds of butter to the defendant at a certain price per pound on the dates therein set forth and. that defendant has never paid for it. These allegations cover everything that is required by the Act of May 25,1887, P. L. 271.

The affidavit of defense contains the bald statement that the defendant does not owe the sum claimed by the plaintiff. It does not deny the receipt of the goods or make any statement in regard to them which would relieve him from the payment in whole or in part of the sum due. There is no defense on the merits.

The remainder of the affidavit is largely in the nature of a demurrer to the sufficiency of the plaintiffs statement in that the plaintiff being a foreign corporation and having done business in Pennsylvania has failed in its statement to allege that it has complied with the Act of June, 8, 1911, P. L. 710. In Blakeslee Mfg. Co. v. Hilton, 5 Pa. Superior Ct. 184, Judge Wickham stated, “He who buys and keeps valuable property and seeks to pay therefor by alleging a violation of a statute on the part of the vendor, ought to set forth his defense with certainty.” This is just what defendant has failed to do. His asserting that the plaintiff before December, 1913, was doing business in the State of Pennsylvania is a mere legal conclusion and the facts to support it are not stated. As was said in Federal Glass Co. v. Lorentz, 49 Pa. Superior Ct. 585: “It is true the affidavit avers the doing of business in Pennsylvania as a legal conclusion, but it gives no facts upon which we can look and determine that the plaintiff has violated the provisions of the act of assembly. All that is here alleged is entirely consistent with the conduct of a foreign corporation engaged in strictly interstate commerce. The affidavit of defense should have stated the facts from which it could be clearly inferred that the particular contract with which we are concerned was violative of the act. We will not assume that the plaintiff was a violator of the law, when the facts set forth are consistent with the doing of a lawful business......Innocence is to be presumed rather than guilt. The presumption is, too, that the defendants stated their defense as strongly as the facts would warrant and whatever is left for conjecture, instead of helping their case, harms it.” “The affidavit should state the character of the business done, in violation of the act:” Galena M. & S. Co. v. Frazier, 20 Pa. Superior Ct. 394; see Sigua Iron Co. v. Vandervort, 164 Pa. 572.

The language above quoted applies so well to the case we are considering, that we need add nothing to it.

An item of the defense denies the plaintiff’s incorporation. This statement is so at variance with the remainder of the affidavit, that it hardly deserves any notice. He first seeks to defeat plaintiff’s claim by alleging that plaintiff is. incorporated by another state and later asserts that he believes that it is not incorporated at all. This is playing fast and loose with the truth. We conclude that the plaintiff’s statement is in full compliance with the Act of 1887 and that the affidavit of defense is insufficient.

The judgment of the lower court is affirmed.