Dreifus v. Logan Iron & Steel Co.

Citations

• 245 Pa. 196
• 91 A. 239
• 1914 Pa. LEXIS 859

Syllabus

<p>Practice, C. P. — Pules—Philadelphia County — Judgment for want of a sufficient affidavit of defense — Pules 42 and 60.</p> <p>1. Under rule 42 of the Common Pleas of Philadelphia County, providing that in actions on contract the statement of claim should have endorsed upon it notice to the defendant that he is required to file a plea and an affidavit of defense within fifteen days of the service thereof, the fact that pursuant to such notice defendant files a plea and an affidavit of defense at the Same time, does not preclude the plaintiff from taking a judgment for want of a sufficient affidavit of defense. There is nothing voluntary in the act of the plaintiff in such a case in demanding both a plea and an affidavit of defense, and his action in so doing does not constitute a waiver of his rights, and inasmuch as rule 60 provides that the entire and exclusive defense in any case of contract must be set out' in the affidavit, the defendant can suffer no harm by reason of judgment being entered for want of a. sufficient affidavit of defense, although his plea is also of record.</p> <p>Affidavits of defense — Contracts—Express contract* — Copiéis of original entries — Averments—Incorrect copies.</p> <p>2. Where in an action on a contract it appears that the plaintiff’s right to recover rests upon what may be regarded as an express contract, an affidavit of defense which does not deny the contract is insufficient, notwithstanding that it contains a denial “that the copies of charges and credits” as set out in the statement of claim and “averred to be copies of the original entries thereof are incorrect and improperly stated.”</p>