Price v. Cloud

Citations

• 28 Del. 78
• 5 Boyce 78
• 90 A. 415
• 1914 Del. LEXIS 12

Syllabus

<p>1. Pleading—Verification—Actions upon Written Instruments— “Filing”.</p> <p>In an action for goods sold, the incorporation of the order for the goods in the declaration and making it a part thereof, without filing it or appending it to the declaration, was not a “filing”, within Rev. Code 1852, amended to 1893, p. 791, c. 106, § 5, providing that in any action upon an instrument in writing, a copy of which is filed with the declaration, etc., the execution of such instrument shall be taken as admitted, unless defendant files an affidavit denying the signature when filing his plea.</p> <p>2. Pleading—Verification—Execution of Written Instrument.</p> <p>Under Rev. Code 1852, amended to 1893, p. 791, c. 106, § 5, providing that in any action upon an instrument in writing, a copy of which shall have been filed with the declaration, the execution thereof is admitted, unless defendant files with his plea an affidavit denying the signature, defendant is not required to file such affidavit, unless plaintiff has filed with his narr. a copy of the instrument.</p> <p>3. Pleading—Verification—“Instrument of Writing”.</p> <p>In an action for goods sold and delivered, the order for the goods, though one of the steps in the proof of plaintiff's case, was not an “instrument of writing,” within Rev. Code 1852, amended to 1893, p. 791, c. 106, § 5, providing that in any action upon any deed, etc., “or other instrument of writing,”, the execution of same shall be taken as admitted, unless defendant files with his plea an affidavit denying such execution.</p>