MacSmith v. Solomon

62 Pa. D. & C. 592, 1948 Pa. Dist. & Cnty. Dec. LEXIS 184

• Court: Pennsylvania Court of Common Pleas, Lackawanna County
• Decided: April 23, 1948
• Docket: no. 578
• Status: Published

Opinion

Robinson, J.,

— Plaintiffs brought this suit in assumpsit upon a book account, a copy of which is attached to and forms part of the complaint.

Defendant moved to strike off the complaint on the ground that the same fails to state whether the claim is based upon a writing.

The courts of Lackawanna County have uniformly held that in a suit upon a book account it is not necessary to aver whether the contract was oral or written as in the absence of any averment it is presumed to have been oral: Yoder v. Laskowsky, 29 Lack. Jur. 17; Pennsylvania Exchange Bank v. Buydos, Inc., 29 Lack. Jur. 102; Wesson Oil Snowdrift Co. v. Vanston, 35 Lack. Jur. 98; American Chewing Products Corp. v. Sterling, 33 Lack. Jur. 46.

Our attention has not been called to any authority modifying the rule of law in the foregoing cases.

Now, April 23, 1948, motion to strike off the complaint is denied.