Ashman v. Weigley

Citations

• 148 Pa. 61
• 23 A. 897
• 1892 Pa. LEXIS 908

Syllabus

<p>Procedure act of 1887 — Statement in assumpsit — Undenied averm,ents.</p> <p>Under the provisions of the procedure act of 1887, the plaintiff’s statement, which takes the place of a common law declaration, must, in the action of assumpsit, be replied to by affidavit. Hence whatever averments therein contained are not denied, must, upon a rule for judgment for want of a sufficient affidavit of defence, be taken as admitted.</p> <p>Affidavit of defence — Averments not responsive to statement.</p> <p>Where plaintiff’s statement averred that there was a sum justly due to him by the defendant, and that a copy of plaintiff’s book of original entries was annexed, the account annexed being headed, “Mrs. Weigley, Dr.,” and the affidavit of defence averred that the items contained in the account were originally charged to “ Mr. Weisley,” and that thereafter the name was changed to Mrs. Weigley, and went on to further aver that plaintiff had in a former suit filed a copy of his book of original entries, in which the several items claimed in this suit were charged against William W. Weigley and Mary F. Weigley, and that he had filed a mechanics’ lien in which the same items were similarly charged, it was</p> <p>Held, 1. That the first point in the affidavit must be taken to be true, and that the necessary inference therefrom is that the original charge to Mr. Weisley was a mistake.</p> <p>2. That the further averments of the affidavit are not responsive to the plaintiff’s statement, since it does not appear that the account was chargeable to these persons, or that any part of it was recovered from them.</p> <p>8. No denial of the indebtedness clearly and concisely set out in the statement being made, the affidavit is insufficient, and the rule for judgment was properly made absolute.</p> <p>Might of action — Mistake of party — Plaintiff not prejudiced thereby.</p> <p>A mere mistake on the part of the plaintiff in charging goods to the wrong person will not discharge the real