Car v. Elsbree

19 Pa. Super. 618, 1902 Pa. Super. LEXIS 163

• Court: Superior Court of Pennsylvania
• Decided: March 14, 1902
• Docket: Appeal, No. 54
• Status: Published

Opinion

Opinion by

William W. Porter, J.,

Failure to append to the statement of claim, a copy of the writing sued upon may defeat judgment for want of sufficient affidavit of defense, and may subject the plaintiff to rule for more specific statement, or to demurrer. After plea pleaded and issue 'joined upon the statement, the failure to appends copy does not prevent admission of the original writing in evidence if properly proven at the trial: Schofield v. Lafferty, 17 Pa. Superior Ct. 8. This disposes of the first assignment. The appellant complains by his second assignment that a witness was permitted to refresh his recollection from a written notice which, while not in his own handwriting, nevertheless, bore his signature, and which, according to the best judgment of the witness, was written at his order by the clerk employed by the company of which he was acting as temporary secretary. The assignment is dismissed.

The remaining assignments may be disposed of together. Whatever the lack of harmony in the decisions in Pennsylvania in respect to the necessity for demand within six years from the contract of stock subscription in order to toll the statute of limitations, it is safe to say that a call made by a board of directors within six years from the date of a subscription payable under the by-laws as required by the directors, fixes the liability of the subscriber for the amount so-called, and that suit for the said amount by an assignee for creditors, brought within six years from the date of the call, is not barred by the statute. See Swearingen v. Sewickley Dairy Co., 198 Pa. 68, and cases there cited and discussed- This conclusion determines the main question raised by this appeal against the appellant.

The judgment is affirmed.