Fair v. Murray

9 Pa. D. & C. 679, 1926 Pa. Dist. & Cnty. Dec. LEXIS 116

• Court: Pennsylvania Court of Common Pleas, Washington County
• Decided: February 14, 1926
• Docket: No. 634
• Status: Published

Opinion

Brownson, P. J.

The writ in this case was issued in trespass, but,the statement of claim declares in assumpsit upon a contract, for a partial breach of which the plaintiff seeks to recover damages. The defendant’s brief states that no question as to the form of the action is desired to be raised, and as the form of action may, if this be necessary, be amended (Gould v. Gage, 118 Pa. 569, 563; Com. v. Press Co., 156 Pa. 516, 523; Collins v. Barnes, 130 Pa. 356), we may, in disposing of the questions which are raised, treat this as an action of assumpsit, giving leave to the plaintiff to amend.

The Practice Act of May 14, 1915, P. L. 483, requires that if the plaintiff be represented in the action by an attorney, the statement of claim shall be signed by such attorney: Section 9. This was not done in the present case, and, as the act specifically requires it, the statement is irregular.

The statement sets out a signed memorandum of an agreement to deliver to the plaintiff on April 1, 1925, by leaving them on a farm which defendant sold to plaintiff, a number of articles of personal property, embracing, inter alia, “2 horses, ... 2 hoes, ... 1 writing desk.” The statement avers that defendant failed and refused to deliver one of the two horses, and also the two hoes and the writing desk, and claims damages therefor in the lump sum of $150, without stating the value of each of these items of personal prop-srty. We think these values should be stated, so that the defendant, when he lies his affidavit of defence, may make an intelligent and definite answer, admitting such of them as he may not dispute and denying such as he may wish to contest, with the result of limiting the issue to be tried to such natters as are actually in dispute.

It is further objected that, as the contract calls for the leáving on the farm if two horses (which may differ in value), and the claim is that only one of ;hem was missing when the plaintiff took possession, there should be some Jeseription by means of which defendant may know which horse is claimed lot to have been delivered. As the farm in question is located in Ohio and ;he defendant lives in Pennsylvania, the circumstances seem to be such that t is reasonable that he should have some such information. Whether the iroper means of compelling this should be a rule to strike off, or a rule for a nore specific statement, we need not go into, as the statement is to be stricken >ff for other reasons, and when a new statement is filed, the plaintiff can and should give the facts therein with more particularity.

And now, Feb. 14, 1926, the plaintiff’s statement of claim is stricken off and eave is given to the plaintiff to file a new statement of claim within thirty lays from this date. Leave is also granted to the plaintiff to amend the form if the action.

From Harry D. Hamilton, Washington, Pa.