White v. Sperling

Citations

• 24 Pa. Super. 120
• 1904 Pa. Super. LEXIS 139

Syllabus

<p>Practice, G. P. — Pleading—Statement—Copy of contract — Affidavit of defense.</p> <p>The provision of the practice act of 1887, requiring a copy of the contract upon which the action is founded to accompany the statement of claim, is absolutely imperative, and not merely directory.</p> <p>If it is clearly made to appear by the defendant’s affidavit that the very contract upon which the statement shows the action is founded is in writing, and the statement is not accompanied by a copy thereof, the defendant has shown a valid reason why summary judgment should not be entered against him, even though he does not set forth a perfectly valid defense upon the merits.</p> <p>Where an action is brought on a book account and defendant alleges a written contract as a basis for the action upon a breach of which he relies as a defense, and which the plaintiff is ruled to produce, and under oath denies its existence and thereby obtains judgment, and subsequently the existence of the contract in plaintiff’s possession is shown, the judgment should be opened. In such a case the fact that the defendant did not give the exact date of the contract, where he otherwise sufficiently designated it, is immaterial. It is error in such a case to enter judgment on the plaintiff’s affidavit denying the existence of the contract, without giving the defendant an opportunity to support his contention as to the existence of the contract by depositions.</p>