Fritz v. Hathaway

Citations

• 135 Pa. 274
• 19 A. 1011
• 1890 Pa. LEXIS 1181

Syllabus

<p>1. In an action of assumpsit upon a book account, when all the charges in the copy of the account, filed with the statement of claim, bear date more than six years prior to suit brought, an affidavit of defence calling attention to that fact, and averring that the defendant has made no new promise, sufficiently sets up the statute of limitations.</p> <p>2. The copy of ¡1 book account required by the Procedure Act of May 25, 1887, P. L. 271, to be filed with the statement of claim in a suit thereon, is only an appendix or exhibit, which may be helped out by averments in the statement; so that a failure to name the defendant in the copy filed is not a fatal defect upon a motion for judgment for want of a sufficient affidavit of defence.</p> <p>3. The copy, however, is a necessary appendix or exhibit to the statement of claim by the express terms of the act of 1887, under which a correct copy of the book entries is required; and the fact that the copy filed is such, should be made to appear, either upon its face or by categorical averment in the statement.</p> <p>4. When the book entries, a copy of which is filed, all bear date more than six years prior to the issue of the writ, an averment in the statement of claim that the amount of the account became due and payable within the six years, without explaining how or why the charges did not become due at their date, is not sufficient to avoid the bar of the statute of limitations.</p> <p>5. The completeness, as to essential facts, which has always been required in an affidavit of defence, is required equally in a statement of claim under the act of May 25, 1887, P. L. 271 ; its spirit plainly requires that every contract or agreement upon which the claim in any manner depends, though in parol, shall be averred in the statement with accuracy and precision.*</p> <p>6. A judgment for want of a sufficient affidavit of defence is in effect a judgment on demurrer, and, like all such judgments, must be self-sustaining on th