259 Pa. 477 | Pa. | 1918
Opinion by
David Mintz, the plaintiff, sued in assumpsit to recover $3,786.07 for natural gas sold to the Tri-County Natural Gas Company, the defendant, under a written contract. Defendant filed an affidavit of defense, followed by a supplemental affidavit, wherein it averred a set-off, in effect, as follows: That, prior to the contract in suit, plaintiff and five other persons, naming them, entered into another written contract with defendant, whereby the former sold to the latter all the gas under and from a certain other tract of land; that, notwithstanding this contract of sale, plaintiff, before the accruing of the claim in suit, “without the consent of defendant” and “without right or warrant in law or equity,” entered upon the land covered by the lease just mentioned and
In a written opinion accompanying the order for judgment, the court below states the view that, since the cause of action averred by defendant against plaintiff, by way of set-off, is “a tortious taking of the property of defendant by plaintiff,” and, since the affidavits of defense contain no sufficient averment that the tort-feasor had sold the converted property, defendant’s claim is in trespass and, therefore, cannot be allowed as a set-off'in the present action of assumpsit; furthermore, that, since the affidavits are not.made by an officer of the defendant company, but by one'styling himself “chief accountant,” in that particular they áre insufficient for want of essential averments. ■
' The defendant contends that it has a fight to waive tbé tort and "treat its .counterclaim against plaintiff as á
The question whether a contractual promise, made by two or more persons, is joint, several, or joint and several, depends upon the intention of the parties as evidenced by the language employed in the agreement under consideration, the general rule being that, in the absence of an apparent intent to the contrary, such promises are presumed to be joint, and not several or joint and several : Philadelphia v. Reeves & Cabot, 48 Pa. 472; Pittsley v. King, 206 Pa. 193; Morrison v. American Surety Co., 224 Pa. 41; Boltz v. Muehlhof, 37 Pa. Superior Ct. 375, 380. As said by our present Chief Justice in Pittsley v. King, supra (p. 196), “It is a general presumption of law, Avhen two or more persons undertake an obligation, that they undertake jointly, and words of severance are necessary to overcome this primary presumption.” In the present instance, no such words appear; hence we say that the plaintiff and his fellow lessors are all jointly liable for a failure to deliver the oil sold to defendant, and the latter cannot maintain a suit against plaintiff alone for such a breach of contract. At common law, there are three distinct forms of obligations ex contractu, i. e., (1) joint, (2) several,'and (3) joint and several. In an action on the first, it was necessary to sue all the obligors together, or the.' survivors of them;
The propriety of the ruling on the question of the attempted set-off is the sole point raised by appellant’s statement of the “question involved,” and we might well confine our consideration thereto (Spang v. Mattes, 253 Pa. 101, 103-4; Hopkins v. Tate, 255 Pa. 56, 62); but we shall briefly pass upon the point of practice referred to in the opinion of the court below. The affidavits in question not having been made by an officer of the defendant corporation, the court rightly viewed them as insufficient for want of essential averments. As President Judge Sloan says, “The affidavits are made by one A. J. Hamilton, chief accountant of the corporation, but it is not stated that he is an officer of the corporation, nor why the same was not made by an officer of the corporation, and it is not averred that he has personal knowledge of the facts..... .In the supplemental affidavit he states that he has a knowledge of the facts, and that he. is duly authorized by the corporation to make and file this supplemental affidavit; but there is nothing in the supplemental affidavit of defense that in any way relates to the original affidavit which would cure the defects in it [the original] ; and, as it [the supplemental] neither states nor alleges why it is not made by an officer of the corporation, it is open to the same objection.” In addition, it may be said that, although the affiant avers that he “believes and expects to be able to prove” the facts therein stated, in neither affidavit does he claim personal knowledge, or that he makes the averments thereof after, investigation or upon Information imparted to him by one possessing personal knowledge. In short, he neither
True, tbe Practice Act of May 14, 1915, P. L. 483, provides that affidavits of defense “shall be sworn to by tbe defendant or some person having knowledge of tbe facts”; but this provision in no way changes tbe requirements laid down in our prior cases for such affidavits when made by agents of corporations who are not regular officers acting within tbe scope of their authority. For discussion of this point, see tbe opinion written by Mr. Justice Mestkezat in Wakely v. Sun Insurance office of London, Eng., 246 Pa. 268, 271, 274-5; and, on tbe general subject involved, see Griel v. Buckius, 114 Pa. 187, 190; see also Yeier v. Hanover Fire Ins. Co., 63 Pa. Superior Ct. 258; Galashevsky v. Camden Fire Ins. Co., 63 Pa. Superior Ct. 511; Yeier v. Camden Fire Ins. Asso., 66 Pa. Superior Ct. 571; and, for an example of a sufficient averment, see Giordano v. St. Paul Fire & Marine Ins. Co., 63 Pa. Superior Ct. 233, 236.
Tbe assignment of error is overruled and tbe judgment is affirmed.