74 Pa. Super. 156 | Pa. Super. Ct. | 1920
Opinion by
The plaintiffs sued the defendant in assumpsit to recover the value of certain gas and electric fixtures sold and delivered to the defendant for use in a new building which was being erected for him. The defense pleaded was that the goods had been sold to the contractor for the building and not to the defendant. Three questions are raised by the assignments of error.
(1) The defendant complains that the learned trial judge erred in admitting in evidence the copy of the plaintiffs’ book of original entry attached to the statement of claim instead of requiring the production of the book itself in order to make out the plaintiffs’ case. Whether in view of the averments and denials contained in the affidavit of defense, considered in connection with the Practice Act of 1915 and Buie of Court 72 of Philadelphia County, it was incumbent on the plaintiffs to produce and offer their book of original entry at the trial need not be here discussed. No exception was taken by
(2) The fact that a general contractor was erecting the defendant’s building under a contract which waived the filing of mechanics’ liens by subcontractors, did not prevent the owner from buying fixtures for the building on his own account or making himself liable in assumpsit for fixtures included in the contract if ordered by and sold to him: Van Leuven v. Holmes, 13 Pa. Superior Ct. 77; Krimmel v. Moss Cigar Co., 237 Pa. 253. The charge of the court, in this respect, was as favorable to the defendant as he could rightfully ask. The fourth and fifth assignments are without merit.
(3) The remaining assignments of error relate to the refusal of the court below to allow the defendant to prove that the plaintiffs, at the time the goods in suit were sold, and also when the action was brought, were not registered in the prothonotary’s office nor with the secretary of the Commonwealth, as provided in the Act of June 28, 1917, P. L. 645, forbidding, under a heavy penalty, persons from carrying on or conducting business in this Commonwealth under an assumed or fictitious name, style or designation unless they shall have first filed in the office of the secretary of the Commonwealth and of the prothonotary, the certificate required by the act. The offer was rejected on the ground that the proposed defense had not been set forth in the affidavit of defense filed. The action was brought after the Practice Act of 1915 (Act of May 14, 1915, P. L. 483) went into effect, and is, therefore, governed by its provisions. This act effects a radical departure from the pleáding and practice ‘ in vogue previous to its enactment. Section 16 provides: “Neither party shall be permitted at the trial to make any defense which is not set forth in the affidavit of defense, or the plaintiff’s reply, as the case may be, except as pro-
With this disposition of the case, we are not called upon to decide whether the Act of 1917 may be used by one who buys goods on credit to defeat the payment of an honest debt. It is not improper, however, to note that, in the States of New York and Louisiana, somewhat similar statutes forbidding partnerships trading under fictitious names and declaring a violation of the act a misdemeanor, were held by the courts of last resort of those states to be designed to prevent the obtaining of credit, not the giving of it, and not to constitute a defense to a debtor, who had not been deceived and who had lost nothing by his dealings with his creditor: Gay v. Seibold, 97 N. Y. 472; Wolf v. Youbert, 13 Southern 806.
The assignments of error are all overruled and the judgment is affirmed.