Opinion
October 4, 1929.
January 29, 1930.
Bailment — Cleaners — Negligent handling of articles — Statement of claim — Affidavit of defense — Insufficiency.
In an action of assumpsit to recover the value of articles of personal apparel, which had been left with the defendants to be cleaned, the plaintiff alleged that the garments had been negligently handled, and their value destroyed. The affidavit of defense contained general denials of the averments of the statement of claim, and alleged that the defendants were unable to ascertain the correctness of the plaintiff's claim.
Held: That the affidavit of defense was insufficient and a judgment for the plaintiff will be affirmed.
An affidavit of defense, which contains general denials of the averments of a statement of claim and which avers that the defendant is unable to ascertain the correctness of the claim, is insufficient unless the effort made by the defendant to ascertain the correctness of the claim is stated.
Statement of claim — Affidavit of defense — Sufficiency — Parties — Corporation or partnership — Failure to disclose.
A statement of claim is self-sustaining, even though it does not disclose whether the defendant is a partnership or a corporation, where the defendant in its affidavit of defense sets forth that it is a duly registered partnership, and gives the names of the partners.
Appeal No. 13, October T., 1929, by defendants from judgment of M.C., Philadelphia County, August T., 1925, No. 666, in the case of Jacob Zwick v. West Park Cleaners Dyers.
Before PORTER, P.J. TREXLER, KELLER, LINN, GAWTHROP, CUNNINGHAM and BALDRIGE, JJ. Affirmed.
Assumpsit to recover the value of articles of personal apparel. Before BONNIWELL, J.
Rule for judgment for want of a sufficient affidavit of defense.
The facts are stated in the opinion of the Superior Court.
The court made absolute the rule. Defendant appealed.
Error assigned, among others, was the making absolute of the plaintiff's motion for judgment for want of a sufficient affidavit of defense.
Oscar Rosenbaum, for appellant.
No appearances and no printed brief for appellee.
Argued October 4, 1929.
The suit was brought before a magistrate against the West Park Cleaners Dyers. A hearing was had, no one appeared for the defendants and judgment was entered against them. From this an appeal was taken to the common pleas where the name of the defendants was changed from West Park Cleaners Dyers to West Park Cleaners Dyers Company. This change should have been made by a petition to amend, but as the defendants in the pleadings disclose that the West Park Cleaners Dyers Company is a partnership composed of Louis M. Carriat, Nathan M. Bell and Herman Sachs, registered under the Fictitious Name Act, trading as West Park Cleaners Dyers, we may consider the matter as if the amendment had been made.
The suit was brought for the recovery of the value of two articles of personal apparel which had been left with the defendants to be cleaned and which were so negligently handled that their value was destroyed. The defendants filed an affidavit raising questions of law which the court decided were not tenable. They then filed another affidavit which practically repeated what was alleged in the first and after this affidavit was held to be insufficient, a judgment was entered against them and they then filed a petition asking leave to file an amended affidavit of defense which contained a repetition of the ones already filed.
We have stated that whatever objection might be made to the record in not originally disclosing the fact whether the defendant was a corporation or a partnership and who composed it, has been overcome by the statement of the defendants in this regard. There is no doubt that the right parties are in court. Objection is made that the plaintiff's statement does not contain an allegation that the sum sought to be recovered is the market value of the goods damaged before the injury was occasioned. It was sufficient in a case such as this merely to allege value, for plaintiff was not confined to market value. See Patterson v. Union Transfer Co., 84 Pa. Super. 273; 17 C.J. 908. The objection that the statement of the plaintiff is not self-sustaining because it contains lumping charges hardly requires notice. The value of the gown which was ruined is set at $75 and the jacket at $15. We do not see how these items can be regarded as lumping charges.
The court rightly decided that the affidavits of defense were not sufficient to prevent judgment. They abound in mere denials of the averments contained in plaintiff's statement. It is true that three years had elapsed since the date of the alleged delivery of the goods in question and the defendants claimed that they had been unable to ascertain the correctness of the averments contained in the statement. They should have stated the efforts which were made to that end. The mere lapse of time did not excuse them from answering the plaintiff's averments.
Objection that the judgment entered cannot be indexed is without merit. An execution thereon will be confined to a partnership property and to the served partners: Shelansky v. Weinfeld Son, 82 Pa. Super. 180.
We are all of the opinion that the conclusion reached by the lower court is correct. The judgment is affirmed.