Order of Unity v. McCann

Superior Court of Pennsylvania

Order of Unity v. McCann

57 Pa. Super. 61, 1914 Pa. Super. LEXIS 150

CourtSuperior Court of Pennsylvania

DecidedApril 20, 1914

DocketAppeal, No. 1

StatusPublished

This text of 57 Pa. Super. 61 (Order of Unity v. McCann) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Order of Unity v. McCann, 57 Pa. Super. 61, 1914 Pa. Super. LEXIS 150 (Pa. Ct. App. 1914).

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Opinion

Opinion by

Kephart, J.,

Two counterclaims or matters of set-off are presented by the affidavit of defense, one of which is a claim against the assignee of the mortgage on a contract of hire and a discharge from employment. The affidavit is silent as to the character of services to be performed, the term of employment, and such breach by the master as would entitle him to recover his salary until such time as he secured employment. The appellant merely sets forth that he was employed until a certain time when he ceased to receive pay from the master, and remained out of employment for a period of five months [65]*65until he secured other employment; and during this time he held himself in readiness to work. To entitle the servant to claim from the master wages for a given period of time, he must aver the conditions of his contract, the services to be performed, and a fixed term of employment: Henry v. Pittsburg & L. E. R. R. Co., 139 Pa. 289.

The other counterclaim arose against the mortgagee. In this he claims for services rendered to the mortgagee amounting to “sufficient to pay off and satisfy the said mortgage, to-wit, $1,100.” Without considering the many questions raised by the appellee in connection with this claim, its availability as a defense as against the assignee and other matters, it is sufficient to say that the affidavit does not set forth the date on which he was to begin and the beginning of such employment, the authority of the agent who employed him, the time within which he was to work or the length of time that he did work; nor is it clearly stated the precise services which he was to render and the actual performance of those services. To sustain an affidavit of defense, which is so clearly wanting in the many essentials of a counterclaim against the plaintiff, would not only be an injustice to the plaintiff, in that he would be unable to sufficiently prepare himself to meet this defense, but would be a violation of the rules laid down by the courts as to what an affidavit of defense, alleging a counterclaim, should contain. It is unnecessary to repeat these rules. See Appleby v. Barrett, 28 Pa. Superior Ct. 349; Loeser v. Erie City Rag Warehouse, 10 Pa. Superior Ct. 540; Anderson et al. v. Williams, 10 Pa. Superior Ct. 329; Penn Shovel Co. v. Phelps, 24 Pa. Superior Ct. 595.

The supplemental affidavit of defense avers that there is no right of action in the assignee and denies that there has been a legal assignment of the mortgage. These statements are merely conclusions of law. No reasons or facts are stated upon which to base these conclusions and the affidavit lacks the elements to con[66]*66stitute á good statement of defense: International Savings & Trust Co. v. Stenger, 31 Pa. Superior Ct. 294.

Some suggestion was made during the argument by the appellant that it was not necessary to file an affidavit of defense to a scire fácias sur mortgage. The law on this is very well settled.

The assignments are all overruled and the judgment is affirmed at the cost of the appellant.

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Opinion by

Kephart, J.,

Two counterclaims or matters of set-off are presented by the affidavit of defense, one of which is a claim against the assignee of the mortgage on a contract of hire and a discharge from employment. The affidavit is silent as to the character of services to be performed, the term of employment, and such breach by the master as would entitle him to recover his salary until such time as he secured employment. The appellant merely sets forth that he was employed until a certain time when he ceased to receive pay from the master, and remained out of employment for a period of five months [65]*65until he secured other employment; and during this time he held himself in readiness to work. To entitle the servant to claim from the master wages for a given period of time, he must aver the conditions of his contract, the services to be performed, and a fixed term of employment: Henry v. Pittsburg & L. E. R. R. Co., 139 Pa. 289.

The other counterclaim arose against the mortgagee. In this he claims for services rendered to the mortgagee amounting to “sufficient to pay off and satisfy the said mortgage, to-wit, $1,100.” Without considering the many questions raised by the appellee in connection with this claim, its availability as a defense as against the assignee and other matters, it is sufficient to say that the affidavit does not set forth the date on which he was to begin and the beginning of such employment, the authority of the agent who employed him, the time within which he was to work or the length of time that he did work; nor is it clearly stated the precise services which he was to render and the actual performance of those services. To sustain an affidavit of defense, which is so clearly wanting in the many essentials of a counterclaim against the plaintiff, would not only be an injustice to the plaintiff, in that he would be unable to sufficiently prepare himself to meet this defense, but would be a violation of the rules laid down by the courts as to what an affidavit of defense, alleging a counterclaim, should contain. It is unnecessary to repeat these rules. See Appleby v. Barrett, 28 Pa. Superior Ct. 349; Loeser v. Erie City Rag Warehouse, 10 Pa. Superior Ct. 540; Anderson et al. v. Williams, 10 Pa. Superior Ct. 329; Penn Shovel Co. v. Phelps, 24 Pa. Superior Ct. 595.

The supplemental affidavit of defense avers that there is no right of action in the assignee and denies that there has been a legal assignment of the mortgage. These statements are merely conclusions of law. No reasons or facts are stated upon which to base these conclusions and the affidavit lacks the elements to con[66]*66stitute á good statement of defense: International Savings & Trust Co. v. Stenger, 31 Pa. Superior Ct. 294.

Some suggestion was made during the argument by the appellant that it was not necessary to file an affidavit of defense to a scire fácias sur mortgage. The law on this is very well settled.

The assignments are all overruled and the judgment is affirmed at the cost of the appellant.

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57 Pa. Super. 61, 1914 Pa. Super. LEXIS 150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/order-of-unity-v-mccann-pasuperct-1914.

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