R. A. Freiler and D. W. Bechtel, for petitioner "believes and, therefore, avers plaintiff. George M. Roads, for defendant. Koch, J., April 19, 1926.—On July 27, 1925, the judgment in this case was entered by an attorney for the plaintiff upon a promissory note reading as follows: "$2000.00 June 29, 1925. "Thirty days after date I promise to pay to the order of A. P. Melavage two thousand dollars, without defalcation, value received, with interest. that the entry of such judgment was illegal and without warrant of law, and your petitioner is entitled to have such judgment stricken from the record." Section 28, of the Act of Feb. 24, 1806, 4 Sm. Laws 278 (2 Purd. 2036), says: "It shall be the duty of the prothonotary of any court of record within this Commonwealth, on the application of any person being the original holder (or assignee of such holder) of a note. bond or other instrument of writing in which judgment is confessed, or con"And further, I do hereby empower any taining a warrant for an attorney-at-law attorney of any court of record within or other person to confess judgment, to the United States or elsewhere to appear enter judgment against the person or perfor me and after one or more declara-sons who executed the same, for the tions filed confess judgment against me amount which, from the face of the inas of any term for the above sum, with strument, may appear to be due, without costs of suit and attorney's commission the agency of an attorney or declaration of 10 per cent for collection and release filed, with such stay of execution as may of all errors, and without stay of execu- be therein mentioned, for the fee of one tion and inquisition and extension upon any levy on real estate is hereby waived, and condemnation agreed to and the exemption of personal property from levy and sale on any execution hereon, is also hereby expressly waived, and no benefit of exemption be claimed under and by virtue of any exemption law now in force or which may be hereafter passed. "Witness my hand and seal. Victor Akelaitis. (Seal). "Minerva Bishop, "Isabell McDonald.” dollar, to be paid by the defendant; particularly entering on his docket the date and tenor of the instrument of writing on which the judgment may be founded, which shall have the same force and effect as if a declaration had been filed and judgment confessed by an attorney, or judgment obtained in open court and in term time," etc. This act clearly obviates the necessity of filing a declaration with such a note in order to enter judgment by confession, notwithstanding the fact that the note itOn Dec. 7, 1925, the defendant ob- self contains a provision empowering an tained a rule to show cause why the judg-attorney to appear for the defendant and ment should not be opened and the de- to confess judgment "after one or more fendant let into a defense and deposi- declarations filed." It was distinctly so tions of certain witnesses on behalf of held by Sergeant, J. (after consulting the defendant were taken in support of with Mr. Justice Kennedy), in the court. that rule. But, pending the disposition of nisi prius at Philadelphia, in 1845, in of the rule, the defendant filed a petition the case of Montelius v. Montelius, to amend the rule and obtained the present rule to show cause why the first rule should not be amended so as "to strike said judgment from the record." Brightly's Reps. 79, and in the case of Rex v. Nelson, 15 Phila. 323. See, also, to like effect, the well-considered opinion of Jones, J., in Union Acceptance Co. v. Grant Motor Sales Co., 5 D. & C. 407. The reason assigned in support of the rule to amend is "That no declaration, According to the record in this case, or instrument of any kind whatsoever, the judgment was entered "on applicawas filed in the prothonotary's office, as tion of the plaintiff," although the enrequired by the terms of said warrant of dorsement on the note bears the name of attorney," the petitioner averring "That the plaintiff's attorney, and the name of the filing of a declaration in such office the plaintiff's attorney appears on the is a condition precedent to the right of face of the docket. But the Act of 1806 an attorney to enter said judgment." The dispenses entirely with the provision re quiring a declaration to be filed where the Stock, J., November 8th, 1926.-Plainface of the instrument clearly discloses tiff and defendants were engaged for the amount due: Connay v. Halstead, 73 some years in reciprocal business transPa. 354; Whitney v. Hopkins, 135 Pa. actions. Plaintiff brought suit in as246. The owner of such note may apply sumpsit for the balance due him on these through any one as his agent to have transactions, as evidenced by a book-acjudgment entered upon it, and if a law-count. His statement contains sufficient yer be such agent, he need not, on that averments of facts of cause of action account alone, file a declaration, because against defendants. He admits, however, the act dispenses with the agency of an a number of items of credit against his attorney or declaration filed. No declar- claim, some of which items of credit are ation was filed by the attorney in the case for goods sold and delivered by defendof Union Acceptance Co. v. Grant Mo-ants to plaintiff. These items are only tors Sales Co., 5 D. & C. 407. admitted in part in his statement, and The judgment is not entered on a dec- unexplained deductions are made against laration filed. "What is entered?-a some of these items. judgment on the judgment bond filed:" Helvete v. Rapp, 7 S. & R. 306, 307. The rule to show cause why the first rule should not be so amended as to show cause why the judgment should not be stricken from the record is discharged. C. P. of Defendants filed an affidavit of defense to the averments of fact in which he denies the allegations of the statement generally, and claims that these deductions above noted are arbitrarily made, without, however, setting forth facts in support thereof. Plaintiff filed a motion for judgment for want of sufficient affidavit of defense York Co. for reasons heretofore indicated. Caine v. Williams & Levin Plaintiff's statement Admission credits-Particularity not required. That the affidavit of defense is insufficient is apparent. "A statement of facts as set forth in paragraph of statement is denied," is not sufficient to prevent judgment: Fulton Farmers Assn. v. Bomberger, 262 Pa. St. 43. "A denial in of the affidavit of defense must be accompanied by detailed explanation": Parry v. First Natl. Bank of Lansford, 270 Pa. St. 556. "A mere denial in the affidavit of defense of facts alleged in statement is not sufficient": Kirk v. Showell, Fryer & Co., Inc., 276 Pa. St. 587; Buhler v. United States Fashion Plate Co., 268 Pa. St. 428; Artzerounian v. Demetriades, A plaintiff's statement which contains suf- 276 Pa. St. 303; Wayne T. & P. Co. v. ficient averments of facts of cause of action Petroleum P. Co., 83 Sup. Ct. 158; Cokecertain items of credit from which unex-ley v. Stiff, 83 Sup. Ct. 184; Snellenberg v. Levitt, 282 Pa. St. 65." There is no provision in the Practice Act claim, or a set-off, to aver such claim or setoff with the same particularity that he must requiring a plaintiff who admits a counter set up his cause of action. As a general rule it is not necessary for the plaintiff to anticipate and negative matters of defense. against the defendant, and admits in part plained deductions are made, is sufficient to sustain a judgment for want of a sufficient affidavit of defense. Motion for judgment for want of a sufficient affidavit of defense in John J. Caine v. L. K. Williams and M. Levin, trading as Williams & Levin, No. 31, August Term, 1926, in the Court of Common Pleas of York Co., Pa. Motion allowed, subject to leave to defendant to amend. C. W. A. Rochow, for motion. Defendants took the position at the argument that plaintiff cannot take advantage of the insufficiency of his affidavit of defense on account of the insufficiency of the statement. There is no provision in the Practice Act requiring a plaintiff who admits a counter claim, or a set-off, to aver such claim or set-off with the same particularity that he must set up his cause of action; in that he is not required to even admit a counter claim or set-off. These are matter which defendant is permitted to set up in certain actions, and when so fense to the whole of the claim, that he set up by him must be set forth by him was not represented by counsel at the with the same particularity that the facts hearing before the alderman, that he was must be averred in a statement of claim left under the impression by the alderby plaintiff. The following rule is man that the case was dismissed, that he quoted, with approval, by the Supreme is not familiar with the English lanCourt: "As a general rule it is not nec- guage, and that the judgment was unessary for plaintiff to anticipate and neg- justly entered. The court granted a rule ative matters of defense. Matters which to show cause why the judgment should should come more properly from the oth- not be opened and the petitioner let into er side need not be stated; it is enough a defense. The plaintiff, answering, defor each party to make out his own nied that defendant was left under any case": Delmont Gas Coal Co. v. Diamond false impression by the alderman, but Alkali Co., 275 Pa. St. 535-540. "It was not necessary under the act to anticipate the defense by averring, by way of confession and avoidance, the facts of estoppel in the statement of claim": Hoffman v. Mutual Fire Ins. Co. of Reading, 274 Pa. St. 292-297. And now, to wit: November 8, 1926, motion for judgment for want of a sufficient affidavit of defense is sustained, with leave to defendants to file an amended affidavit of defense within fifteen days. C. P. of says that he was informed by the alderman at the time of the rendition of judgment against him, and that the defendant understood the proceedings. Defendant's own testimony shows that Depositions were taken by both sides. Herbert J. Bausher, appeared at a he, together with the other defendant, hearing before the alderman, that the alderman asked him whether he owed the the alderman talked to him and told him plaintiff, which he denied, and that then to go home and he went. Nothing was said about the case being dismissed. The defendant does not say that he was left Berks Co. under the impression that the case was Pazaras v. Rotskopolos dismissed. The alderman's version of what occurred at the hearing is that after all the testimony was heard defendant was informed that judgment would be. entered against both defendants for the claim. For some reason the other defendant, Bausher, was not called to corroborate defendant. However, it will serve no useful purpose to review the testimony, for under our law a judgment entered upon a transcript from a justice of the peace cannot be set aside, if regular upon its face, nor can it be opened and the defendant let into a defense, in the court of common pleas: Taylor v. Tudor & Free, 81 Pa. Super. Ct. 306, Luther C. Schmehl, for defendant and and the cases there cited. Chief Justice Judgments-Transcript from justice -Opening judgment. A judgment entered upon a transcript from a justice of the peace can not be set aside, if regular on its face, nor can it be opened court of common pleas. Any attack upon the validity of such judgment must be made be and the defendant let into a defense, in the fore the justice. Rule to open judgment. Rule discharged. rule. Randolph Stauffer, for plaintiff. Black, in Lacock v. White, 19 Pa. 495, sums up the rule as follows (p. 498): "the retrial of a case like this is anomaStevens, J., March 1, 1926.-On the lous and illegal. The whole matter being entry of judgment upon a transcript conclusively settled by another tribunal, from an alderman and the issuance of an the court has no authority to hear it attachment execution thereon, Efthy- again." mious Rotskopolos, one of the defend- Counsel for the defendant suggests ants in the judgment, filed his petition al- that there are precedents for the relief leging that he was not indebted to the sought and cites Diamond v. Tobias, 12 plaintiff, that he had a just and true de- Pa. 312, and Woodward v. Carson, 208 And now, to wit, March 1, 1926, the rule to show cause is discharged. Pa. 144. Neither of these cases seems to to the constable of the township, ward or us to sustain his contention. The first district where the defendant usually rewas a proceeding by sci. fa. quare ex. sides or can be found, or to the next connon, to which was pleaded payment, and stable most convenient to the defendant. the question here at issue did not arise. * The magistrate's record does In the latter case the judgment was en- not show, and it may be, that the officer tered upon a judgment note and is not in to whom the summons in this case was point. issued was not the "next constable," but it does not appear from the record that he was not the most convenient within the meaning of the act: Pollock v. Ingram, 6 Pa. Superior Ct. 556, 560. FurWashington Co. thermore, it has been held rather uniformly by the courts that this provision of the Act of March 20, 1810, is not mandatory, but merely directory: Kans v. School District, 26 Pa. C. C. Reps. 276, 279: Clark v. Worley, 7 S. & R. Justice of the peace-Summons-Is- 349: Com, v. Lentz, 126 Pa. 643; Smith sue of Constable-Record-Directory V. Schell, 13 S. & R. 336; Gordon v. Camp, 3 Pa. 349; Purnell v. McBreen, requirement-Res adjudicata — Act of 23 Pa. C. C. Reps. 442, 444; Cooney v. Wolfe, 20 Dist. R. 37, 38. C. P. of Palmer, et al., v. Phalen March 20, 1810. 1. The direction in the Act of March 20, 1810, 5 Sm. Laws 162, that a summons issued by a justice of the peace shall be issued to the constable of the township where defendant resides or to the next constable most convenient to defendant, is directory and not mandatory. v. The one remaining exception to the magistrate's record complains that a judgment had already been rendered on the same cause of action before another magistrate at the institution of the present suit. This is a matter, however, dehors the record. If the matter involved in this cause of action had already been adjudicated before another magistrate, such fact would constitute a good deOn certiorari from a judgment of a jus-fense, but it is not such a matter as may tice of the peace, the court will not consider be considered upon certiorari: see Steel 2. Non-compliance with the act, even if the act were mandatory, is not a ground for reversing the judgment on certiorari, unless the error appears affirmatively by the record. 3. as a ground for reversal that a judgment had already been entered on the same cause of action before another magistrate. Such a matter is de hors the record. Certiorari. Vernon Hazzard, for plaintiffs in error. Cummins, J., Feb. 1, 1926.-This case comes before the court upon certiorari from a judgment entered by the magistrate upon a claim for wages. In support of the certiorari the plaintiffs in error have filed two exceptions. v. Levy, 282 Pa. 338, 342. And now, Feb. 1, 1926, for the reasons set forth in the foregoing opinion, exceptions dismissed and judgment of the magistrate affirmed. Practice C. P.-Plaintiff's statement— Amendment during trial Sales — Ac The first exception is to the effect that the summons issued by the magistrate was not served by the constable nearest or most convenient to the defendant. The ceptance-Sec. 48 of the Sales Act 19 plaintiff in error evidently relies on sec tion 2, of the Act of March 20, 1810, 5 May, 1915, P. L. 543, 556-7-Written Sm. Laws 162, which provides that in the Contemporaneous oral agreeinstitution of an action of assumpsit, the magistrate's summons shall be "directed ment. contracts to amend his statement so as to allege fraud, after the plaintiff's case was in, especially matter of defense which was known to the defendant at the time the original affidavit was filed, with no adequate reason given why where the proposed amendment related to a On the trial of an action in assumpsit for the defendant was induced to sign the breach of a written contract, it is not error written agreement by the representation, for the court to refuse to allow the defendant presumably by the sales agent, that they should be liable only for two months' deliveries under the contract, and that there was fraud therein in that the defendants were later confronted with a contract making them liable for twelve months' deliveries. Upon objection, allowance of the amendment was refused. There was a verdict for plaintiff. the proposed defense was not then averred. Under Sec. 48, of the Sales Act 19 May, 1915, P. L. 543, 556-7, the shipment of goods to the buyer, their receipt, acceptance and retention with a payment on account, without objection, if any at all, until three months later, constitutes acceptance of the goods by the buyer. Where a written contract covering the sale of goods contains the provision that "neither party to the agreement is bound by any verbal contract," and the buyer does not allege fraud, accident or mistake, the written contract controls. Rule for new trial. Discharged. Defendants seek a new trial because of the court's refusal (1) to permit them to offer parol evidence of a contemporaneous oral agreement which induced the execution of the written agreement, (2) of defendant's offer of evidence tending to prove a contract other than the written instrument purported to be, and (3) David Sharman, Jr., for defendant and to allow the amendment. rule. E. H. Deysher, contra. We will consider the reasons in inverse order. The amendment was refused in the discretion of the court be Stevens, J., July 6, 1926.-To plain- cause, made during the trial after plaintiff's statement of claim to recover the tiff's case was in, it was an attempt to inprice of advertising matter sold and de- ject at that stage of the proceeding a livered under a written order signed by matter of defense which was known to the defendants, they filed an affidavit of the defendants at the time the original defense averring that they ordered the affidavit of defense was filed, with no matter to be sent at the rate of 200 per adequate reason given why the proposed month for the months of November and defense was not then averred. The December, 1923, only, paid therefor, and amendment was properly refused: Rules notified the plaintiff, although not specifying when or how, that the order was for two months only, although on its face it was for 2400 cards to be shipped at the rate of 200 per month, and that they would be responsible for no more than two months' deliveries. They further aver that plaintiff's authorized agent, naming him, assured defendants that he would arrange with the plaintiff to discontinue sending any more cards and to exonerate them from any further liability than was incurred for the two of Court, No. 176; Greth v. Fisher, 12 Berks Co. L. J. 126; Pangborn Corp. v. Blatt, 14 id. 129; Dever v. Kathrins & Golen, 82 Pa. Super. Ct. 140. This might well dispose of the whole case, for nowhere in the affidavit of defense is there set up any parol contemporaneous inducing agreement or any fraud. But passing to the remaining two reasons, the defense, if the amendment had been allowed, would have been of no avail. First, because, although the order called for 2400 cards to be shipped at the rate of 200 per month, it stipulated that they With the pleadings in this state, the might be shipped earlier than the date case went to trial, and after the plaintiff specified, provided the bill corresponded had put in its case, the defendants of- to the date, and the statement averred fered evidence to show a parol contem- shipment in October, 1923, and the reporaneous agreement inducing the execu- ceipt, acceptance and retention by the detion of the written agreement and fraud fendants with a payment on account, therein. Upon objection, the offer was without objection, if any at all, until excluded, whereupon defendants moved three months later. Under Sec. 48, of to amend their affidavit of defense by the Sales Act of May 19, 1915, P. L. 543, setting up an inducing cause for the 556-7, this was an acceptance. Nowhere signing of the written instrument in that in the affidavit of defense is this more months. |