46 Pa. Super. 299 | Pa. Super. Ct. | 1911
Opinion by
This action is in form assumpsit and the plaintiff appeals from the refusal of the court below to grant judgment for want of a sufficient affidavit of defense.
Plaintiff’s declaration avers that it is a common carrier and in the course of its business it frequently received shipments of merchandise from points outside of Philadelphia, by rail, billed through to destination over the said railroad and the plaintiff’s line of steamships. It thereupon became the duty of the said plaintiff to receive said shipments from the said railroad companies and haul the same to its wharves in Philadelphia fpr shipment to their proper destination.
The only other averment in the declaration which we deem material (and this only in regard to the sufficiency of the affidavit of defense), is the following: “And the plaintiff avers that it was the custom of the said defendant to present weekly or monthly statements of his drayage for the purpose of receiving compensation therefor, but that in none of the cases hereinafter mentioned, did the said Daniel A. Hull, the defendant, or any one in his behalf, include the same in his statements or bills, or make any demand for the drayage therefor.”
In the early case of Smith v. Seward, 3 Pa. 342, it was held as stated in the syllabus: "An averment of a promise, and a consideration, are both essential to a declaration in contract. Hence, a declaration averring an undertaking in consideration that the public should be conveyed by means of defendant’s ferry, and for hire, to receive and safely to convey, and that plaintiff learning said offer did use the ferry, and commit his horse to defendant, in consideration of an undertaking to convey — was held to be in tort.” And while that action was in form against two persons yet a recovery was allowed and sustained against one for the reason that the action was really in tort. In Porter et al. v. Hildebrand, 14 Pa. 129, it was held that, “Foreign attachment will not lie upon a demand founded in tort. It will not lie to recover from common carriers for the loss of a trunk, where the declaration is in tort and not in contract.” In Woodwell v. Bluff Mining Co., 25 Pa. 365, it was held that, "Under the rules of the district court of Allegheny county, no judgment can be entered for want of an affidavit of defense, in an action upon an implied contract to pay money.”
In Hossler v. Hartman, 82 Pa. 53, an action of assumpsit was brought and judgment was entered for want of an affidavit of defense. The defendant appealed and the Supreme Court reversed the judgment for the reason that the plaintiff’s cause of action did not entitle him to an affidavit of defense.
It is true that the above cases were all decided under the acts of assembly and rules of courts in force prior to the passage of our procedure Act of May 25, 1887, P. L. 271- The object in citing those cases is to show the law
The learned counsel for appellant has neither printed nor referred us to any rule of court under which he claims judgment for want of a sufficient affidavit of defense on his peculiar declaration, and, therefore, we are warranted in assuming that he plants himself upon the Act of May 25, 1887, P. L. 271. That he is not entitled to such judgment we consider abundantly demonstrated by the interesting opinion of the late Chief Justice Green in Corry v. Penna. R. R. Co., 194 Pa. 516. In that opinion we find the following: “We think an examination of the act of 1887 clearly shows that it was the intent of the legislature to confine the remedy by judgment for want of an affidavit of defense to actions ex contractu alone, as they were before the act was passed, and not to extend this remedy to actions ex delicto, or in their natures ex delicto. . . . The 5th section of the act provides that, ‘In the action of assumpsit, judgment may be moved for want of an affidavit of defense, or for want of a sufficient affidavit, for the whole or part of the plaintiff’s claim, as the case may be,
But the defendant did file an affidavit of defense and we cannot see that the plaintiff was entitled to judgment even if his cause of action was in assumpsit on a contract. The plaintiff’s declaration in regard to the custom of the defendant to present weekly or monthly statements of his drayage for the purpose of receiving compensation therefor, above quoted, is expressly denied in the affidavit of defense as follows: “Your deponent denies that it was the custom to present weekly or monthly statements of his drayage to the plaintiff for the purpose of receiving compensation therefor, but on the contrary surrendered such receipts as he had received from the plaintiff for the goods which he had delivered to the plaintiff, weekly or monthly, and the plaintiff .would then forward to him a check for such amount as would be due upon the calculation of the plaintiff of these receipts.
“Your deponent further avers that he delivered to the plaintiff all goods which he received from any persons to be transported to the wharves of the plaintiff company, and that the plaintiff has all the receipts which it gave to your deponent for the said goods, the same having been surrendered to the plaintiff at such times as the plaintiff paid the defendant for the hauling in the course of this business.
“Your deponent further denies that either he or his servant or agent ever failed to deliver any consignment to the plaintiff or any part thereof, etc.”
Assuming the declaration to call for an affidavit of de
We will not be understood as deciding that the plaintiff cannot recover in assumpsit in this case because that question is not raised.
We have a long line of decisions to the effect that the Act of assembly of April 18, 1874, P. L. 64, authorizing a writ of error, where judgment is refused for want of a sufficient affidavit of defense, was only intended to reach clear cases of error in law and thus prevent the delay of a trial. The Supreme Court has said that the instances are rare where any benefit results from appeals in such cases. The practical effect of such mode of practice is to delay instead of speeding causes and add materially to the expense of the litigants. See Griffith v. Sitgreaves, 81* Pa. 378; Radcliffe v. Herbst, 135 Pa. 568; Ætna Ins. Co. v. Confer, 158 Pa. 598. In Ensign et al. v. Kindred and Paine v. Kindred, 163 Pa. 638, 643, the late Justice Green said: “We do not mean to interfere, where rules for judgment have been discharged in the lower courts, in doubtful and uncertain cases, but only in such as are very clear and free from doubt, as we have frequently said.” In our own court the same rule has been strictly followed.
We are all of the opinion that the learned court did not err in discharging the rule for judgment, and, therefore, the order is affirmed without prejudice, etc., and the appeal is dismissed at the costs of appellant.