Plunkett v. Hamnett

Superior Court of Pennsylvania

Plunkett v. Hamnett

36 Pa. Super. 590, 1908 Pa. Super. LEXIS 210

CourtSuperior Court of Pennsylvania

DecidedJuly 15, 1908

DocketAppeal, No. 26

StatusPublished

Cited by1 cases

This text of 36 Pa. Super. 590 (Plunkett v. Hamnett) 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

Plunkett v. Hamnett, 36 Pa. Super. 590, 1908 Pa. Super. LEXIS 210 (Pa. Ct. App. 1908).

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Opinion

Opinion by

Henderson, J.,

The plaintiff’s action is in assumpsit for money alleged to be due 'on a written agreement set out in the statement of claim in the following form:

“Pittsburg, Pa., 9-17, 1906.

“$500.

“Received of Thomas E. Plunkett, check for Five Hundred ($500) Dollars to be paid on account of Rankin property or returned.

(Signed) “ T. Leo Hamnett.”

the allegation being that payment was not made by the defendant on account of the Rankin property and that upon demand made by the plaintiff’s attorney the defendant failed and refused to pay to the plaintiff $500. A radical defect in the statement of claim is that it is not averred that the defendant received the money on the check or that it was paid by the bank on which it was drawn to any person. It is true the declaration avers that the plaintiff “handed” to the defendant the sum of $500, but this is in immediate connection with the averment that the plaintiff received from the defendant the agreement above quoted. There can be no doubt, therefore, that what the defendant received from the plaintiff was not money but a check, and unless the defendant or some person for him or through him obtained the. money on the check from the plaintiff’s funds in bank the defendant does not owe the plaintiff the amount of the check. The latter may have some remedy to recover the check, but the defendant did not become liable to him for the sum named therein by merely receiving it into his possession. While technicality of pleading is now greatly relaxed, the procedure act of 1887 still requires the declaration in assumpsit and trespass to be not only a concise statement of the plaintiff’s claim, but to set forth with completeness the ground on which the plaintiff seeks to recover. All of the elements of a complete cause of action must be clearly set forth. Formality is not required, but substance cannot be dispensed with. There is no presump[593]*593tion that the check delivered by the plaintiff to the defendant was paid, and without an averment of this material fact the statement of claim does not set forth a liability on the part of the defendant which would sustain the action.

The judgment is-affirmed.

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Opinion by

Henderson, J.,

The plaintiff’s action is in assumpsit for money alleged to be due 'on a written agreement set out in the statement of claim in the following form:

“Pittsburg, Pa., 9-17, 1906.

“$500.

“Received of Thomas E. Plunkett, check for Five Hundred ($500) Dollars to be paid on account of Rankin property or returned.

(Signed) “ T. Leo Hamnett.”

the allegation being that payment was not made by the defendant on account of the Rankin property and that upon demand made by the plaintiff’s attorney the defendant failed and refused to pay to the plaintiff $500. A radical defect in the statement of claim is that it is not averred that the defendant received the money on the check or that it was paid by the bank on which it was drawn to any person. It is true the declaration avers that the plaintiff “handed” to the defendant the sum of $500, but this is in immediate connection with the averment that the plaintiff received from the defendant the agreement above quoted. There can be no doubt, therefore, that what the defendant received from the plaintiff was not money but a check, and unless the defendant or some person for him or through him obtained the. money on the check from the plaintiff’s funds in bank the defendant does not owe the plaintiff the amount of the check. The latter may have some remedy to recover the check, but the defendant did not become liable to him for the sum named therein by merely receiving it into his possession. While technicality of pleading is now greatly relaxed, the procedure act of 1887 still requires the declaration in assumpsit and trespass to be not only a concise statement of the plaintiff’s claim, but to set forth with completeness the ground on which the plaintiff seeks to recover. All of the elements of a complete cause of action must be clearly set forth. Formality is not required, but substance cannot be dispensed with. There is no presump[593]*593tion that the check delivered by the plaintiff to the defendant was paid, and without an averment of this material fact the statement of claim does not set forth a liability on the part of the defendant which would sustain the action.

The judgment is-affirmed.

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Bluebook (online)

36 Pa. Super. 590, 1908 Pa. Super. LEXIS 210, Counsel Stack Legal Research, https://law.counselstack.com/opinion/plunkett-v-hamnett-pasuperct-1908.

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