McKeone Soap Manufacturing Co. v. Religious Press Co.

8 A. 781, 115 Pa. 310, 1887 Pa. LEXIS 316

• Court: Supreme Court of Pennsylvania
• Decided: March 14, 1887
• Status: Published

Opinion

Mr. Justice Sterrett

delivered the opinion of the court March'14th, 1887.

Assuming that the order, a copy of which was filed in this case, is an instrument for the payment of money within the meaning of the affidavit of defence law, We think the amount of advertising done, in pursuance of the order, and the contract value of the same might have been so averred as to have required defendant to file a specific affidavit of defence; j>ut, as they appear of record, the averments are wholly insufficient for that purpose.

The order in question contains a promise to pay nine cents per line for advertising in one of the papers named, and five cents per line in each of the others. If the number of lines advertised in each paper, together with the respective dates of each insertion, had been averred, the amount due .under the order would have been fixed with mathematical precision, and defendant would have been fully informed as to the items, etc., which compose plaintiff’s claim; but, instead of thus specifying the different items, the averment is that plaintiff claims to recover for advertising, between certain dates, the sum of 1647.25, with interest from March 31st, 1886. It is not even averred that the gross sum claimed for advertising is computed according to the prices named in the order. In some cases it is obviously proper that, in addition to filing a copy of the instrument sued on, there should be something to indicate to defendant precisely what he is called upon to answer-: Bank v. Maguire, 42 Pa., 77-8. That was not done in this case, and defendant was not bound to answer the somewhat vague and uncertain averment that was made for the purpose of helping out the written instrument.

In view of the fact that the affidavit of defence law, under which this case arises, has been considered in Vulcanite Paving Co. et al. v. The Philadelphia Traction Company, No. 72 of this term, it is unnecessary to pursue the subject further in this case. The assignment of error is sustained.

Judgment reversed, and procedendo awarded.