Neely v. Bair

Citations

• 144 Pa. 250
• 22 A. 673
• 1891 Pa. LEXIS 605

Syllabus

<p>(а) A rule of court provided that if the plaintiff should file with his declaration or statement a specific averment of facts sufficient to support his claim, verified by affidavit, and served on the defendant or his counsel of record, such material averments of fact as were not denied by affidavit filed with or before plea pleaded, should be taken as admitted.</p> <p>(б) A statement of claim in assumpsit averred the sale and delivery of certain chattels by the plaintiff to the defendant, on a day certain and at a price agreed upon at the time. The affidavit of defence did not deny the sale, delivery, or price of the chattels, as thus averred, but set up a substantive defence of matters in avoidance of all liability to the plaintiff:</p> <p>1. In such case, it was error to refuse the plaintiff’s offer of the statement of claim and affidavit of defence, as evidence of the sale, delivery, and price of the properly. Under said rule of court, these facts were not only undenied, but distinctly admitted by the defendant, and the plaintiff had the right to rest upon the prima-facie case thus presented.</p>