56 Pa. Super. 323 | Pa. Super. Ct. | 1914
Opinion by
The appellant has assigned for error the entry of judgment against him for want of a sufficient affidavit of defense, and also the discharge of his rule to show cause why the judgment should not be opened. The petition for the rule set up no defense to the action which was not available to the defendant when he filed his affidavit of defense, and alleged no sufficient reason for not setting forth his entire defense therein. Therefore, if the affidavit of defense was insufficient to prevent judgment, the defendant was not in position to demand that the judgment be opened,, and the court in refusing to open it properly exercised the discretion vested in it. Therefore we shall confine our discussion to the questions raised by the affidavit of defense.
The action was assumpsit. The statement of claim alleged (1) a written contract of employment of the plaintiff by the defendant for the period of eighteen months, ending November 28, 1912, at a salary of $25.00 per week; (2) performance by the plaintiff of his part of the contract up to and including the week ending March 9, 1912, and payment by the defendant of the stipulated salary up to the end of the preceding week; (3) discharge of the plaintiff, without cause, on March 9, 1912, and refusal by the defendant to pay the subse
The affidavit of defense alleged, as cause for abating the action, that at the time it was begun there was pending against him, in the court of common pleas No. 3 of Philadelphia county, an action of assumpsit, brought by the same plaintiff, which was based on a breach of identically the same contract as that sued on in the present case, and that that action was still pending and undetermined. The cause of action alleged in that case, as shown by the statement of claim filed therein, was, that, by a clause of the contract of employment above referred to, as modified and amended by a subsequent agreement, it was agreed that certain personal property and a laundry route and good will of the laundry known as Roxboro, which' belonged to the plaintiff at the date of the original contract, should, at the end of the contract period and upon payment of $350 by the defendant, vest in the latter; that the defendant’s breach of the contract, by discharging him, terminated it; that the use and possession of the personal property, etc., were retained by the defendant without offering to return the same to the plaintiff; and therefore there was due and owing to the plaintiff the sum of $350 with interest, which the defendant refused to pay. It should be mentioned that the plaintiff distinctly recognized the entirety of the contract by alleging, in his statement of claim in that case, that the use
In the recent case of Stradley v. Bath Portland Cement Co., 228 Pa. 108, it was held, after an exhaustive consideration of the question from the standpoint of principle and authority, that (we quote from the syllabus), where a person employed for one year at a fixed salary payable in monthly installments, brings an action against his employer to recover the first month’s salary, and in his statement of claim duly sets forth the contract and its terms, and avers performance of duties, and nonpayment for same, and judgment is entered against the defendant for want of an affidavit of defense, and such judgment is paid, the judgment, if unimpeached and unreversed, is res adjudicata in a later suit to recover other monthly installments of pay, as to all matters relating to the contract set forth in the plaintiff’s statement of claim in the first suit. A fortiori is the first judgment conclusive if it was entered on verdict and then paid. It was also held, that, when the employee under such a contract has' been wrongfully discharged, he can, if he sees fit, bring a separate action as each installment of salary falls due; yet if no action is brought until more than one is due, all installments that are then due must be included in the one action; and if an action is brought when more than one is due, a recovery in such action will be an effectual bar to a second suit brought to recover installments which were due at the time of the inception of the first action; and this on the theory that a judgment settles everything involved in the right to recover, not only matters that
Prior to the Procedure Act of May 25, 1887, P. L. 271, a defendant was permitted to plead in abatement the pendency of a former action for the same cause, where a complete remedy could be secured by one action, and his right to raise the objection, and his duty to raise it promptly, if he intends to raise it at all, remain unaffected by that act: Becker v. Lebanon, etc., Street Ry. Co., 25 Pa. Superior Ct. 367. An affidavit of defense averring facts which furnish the necessary material for a formal plea in abatement, is sufficient to prevent judgment: Billington v. Gautier Steel Co., 19 W. N. C. 339, s. c., 7 Sadler, 574. We do not find many other cases in which this question of practice has been considered, but the principle is recognized in Penna. R. R. Co. v. Davenport, 154 Pa. 111; Hopkins v. Ludlow, 1 Phila. 272; Bank v. Teese, 6 Pa. C. C. Rep. 178. No good reason is assigned by counsel, and we see none, why an affidavit of defense which alleges everything essential to a good plea in abatement, and distinctly shows that they are alleged for the purpose of abating the former action, should not be given effect. In such case the plaintiff is not taken by surprise by the use of the affidavit for a different purpose from that expressed, but is duly warned, so that he may remove the objection by discontinuing the former action, if he so desires; for the plaintiff may discontinue the former suit after plea pleaded, and reply that no such action is pending: 1 T. & H. Pr., 5th ed., sec. 516. And of course he may do so where the pendency of the action is set up in an affidavit of defense.
This brings us to the main question, which is, whether
It is not clear, however, that we have power, not only to reverse the judgment, but also to enter a formal judgment abating the present action, as we would have if a formal plea in abatement had been entered. See Blackburn v. Watson, 85 Pa. 241.
Judgment reversed.