Vulcanite Paving Co. ex rel. City of Philadelphia v. Philadelphia Traction Co. , 115 Pa. 280 ( 1887 )

Mr..Justice Sterrett

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

. Two questions are presented by this record: 1st. Whether the contract, on which suit was brought, is an instrument for the payment of money within the meaning of the affidavit of defence law of March 28th, 1835? 2d. If it is so, does the-affidavit of the company defendant disclose any defence that entitles it to a jury trial?

The second section of the Act provides-that, “In all actions .....on bills, notes, bonds and other instruments for the payment of money and for the recovery of book debts, in all-actions of scire-facias on judgments and on liens of mechanics- and material men,.....it shall be lawful for the plaintiff to enter judgment by default, notwithstanding an appearance by attorney, unless the defendant shall previously have filed an affidavit of defence, stating therein the nature and characteróf the same: provided that, in all such cases, no judgment shall be entered by virtue of this section unless the said plaintiff shall.....have filed, in the office of the prothonotary, a copy of the instrument of writing, book entries, record or claim on which action has been brought.” This is the first legislation on the subject, but the practice of requiring affidavits of defence in certain cases originated as early as 1795, and, under rules of court, adopted with various modifications in nearly every judicial district, has become a most important feature of our civil jurisprudence. An interesting account of the origin and progress of the affidavit of defence system in this state is given by Mr. Endlich in his excellent treatise on “The Law of Affidavits of Defence” 1, 2 «í seq. With comparatively slight modifications in the direction of progress, the practice in the first judicial district, city and county of Philadelphia, has remained in statu quo for over half a centurju During that period, a vast amount of litigation has arisen, under the Act above quoted, not so much as to what constitutes a sufficient affidavit of defence, as in relation to what are “instruments of writing for the payment of money.” Some of the decisions, adopting a very strict construction of the Act, hold that no' instrument is within its purview that does not, upon its face, exhibit a, prima facie case in favor of plaintiff, — an instrument which without facts dehors the writing itself would warrant a jury in rendering a verdict in his favor. The logical sequence of this principle would exclude all past due notes except in suits between the payee and maker. If would exclude a negotiable note in suit against an indorser unless a waiver of protest is indorsed thereon by the latter. To avoid this consequence, resort has been had to a “ presumption that all-steps have been duly taken which are necessary to fix liability, such as due presentment, demand of payment at the proper time and place, and notice of dishonor:” McConegly v. Kirk, 68 Pa., 200. But why presume rather than aver the existence of facts, dehors the instrument, essential to plaintiff’s right of action ? The latter has certainly all the effect of the former,, with the superadded advantage of express notice to defendant of what he is required to. meet.

In other cases, more in harmony with its remedial purposes, the Act has received a more liberal construction. They hold, in substance, that an instrument, if it be for the payment of money, as contradistinguished from one for the performance of any collateral undertaking, though not exhibiting on its face a prima facie right in plaintiff to recover, may be helped out by proper averments of fact, which, coupled with the instrument itself, will warrant a verdict in plaintiff’s favor. One of these is Bank v. Thayer, 2 W. & S., 443, in which Mr. Justice Rogers, speaking of the provision for entering judgment in default, etc., says: “ The instrument of writing has relation to the payment of money, and the paper itself, without extraneous evidence, imports a direct and absolute undertaking to pay. It is true, without the averment or proof of extraneous facts, simple interest could only be recovered; but this cannot alter the case, for otherwise, in certain cases, as suits against indorsers, the holders of bills of exchange and promissory notes would lose the benefit of this provision. In eveiy adjudication on the Act, which is a remedial and a very beneficial one, we have always held that it should be liberally construed. If it be necessary to make averments dehors the instrument on which suit is brought, whether it be note, bill or any other instrument for the payment of money, the fact so set forth may be denied in the affidavit. If not denied, it is admitted, and the court can say with certainty whether, taking the statement with the affidavit, the defendant has any defence to the action.” Again, in Dewey v. Dupuy, Id., 556, Mr. Justice Sergeant, speaking of the instrument sued on, says: “The contract, on its face, shows a liability to pay money, and it is in the power of the defendant to deny all indebtedness upon it, or to explain the nature of the defence against all and any claim that might arise from the face of the instrument. It would seem as if the legislature intended that the propriety of entering a judgment was to be tested, not so much by the plaintiff’s claim as by the defendant’s affidavit, which is, on that account, required to state specifically the nature and character of the defence.” In Sutton v. Athletic Club, 4 W. N. C., the learned president of Common Pleas, No. 4, of Philadelphia, in a well considered opinion, held in substance that every written agreement, by which a man binds himself to the payment of a certain sum of money, is within the Act, if, when suit is brought, the time of payment is elapsed, and the defendant will be put to his affidavit of defence, although the payment of the money was, when the contract was made, dependent on the future performance of acts by the plaintiff. In same case he also remarks: “It has been sometimes said, perhaps without sufficient consideration of the progress of the law, that executory agreements are not within the affidavit of defence law, but an examination of- the eases will show that such a proposition is altogether untenable : ” and cases are there cited in support of his position.

In Matthews v. Sharp, 99 Pa., 560, the point was made that the agreement in suit was executory and, therefore, not within the affidavit of defence law, and could not be helped out by plaintiff’s averment that “he was ready and offered to perform his covenants in the said agreement,” etc. But the position was treated by this court as untenable, and the judgment in favor of plaintiff was affirmed. That case arose under rule of the Common Pleas of Chester county adopting the affidavit of defence Act under consideration. Other cases might be cited in support of the more liberal and, as we think, proper construction of the Act, but it is unnecessary to refer to them. The Statute is undoubtedly remedial, — intended to prevent vexatious and useless delay and expense in the administration of justice, and thus facilitate the collection of pecuniary claims, founded on written instruments, in cases where the defendant has no meritorious or available defence. In view of this, it should be liberally construed..

This action was brought on a contract between the city of Philadelphia, acting through the commissioners for the erection of the public buildings, of the first part, and the legal plaintiffs, of the second part, in connection with the contract of defendant company indorsed thereon. By the terms of the principal contract, the legal plaintiffs agree to grade and pave the roadways surrounding the new city hall, including Broad street from south curb on Penn square to north line of passenger railway track on Chestnut street, for a specified sum per yard, one fifth thereof to be paid by defendant company as per its contract, and the residue by the city. 'Defendant company’s indorsed contract is as follows: “The Philadelphia Traction Company assent to the terms and conditions of the within contract, and agree to wholly assume, be responsible for and pay to the parties of the second part the one fifth of the cost of grading and paving the whole of the roadways surrounding the new city hall, and the one fifth part of the cost of grading Broad street from the south line of the curb on Perin square to the north line of the passenger railway track on Chestnut street, as within provided.” Among other things, it is therein provided that the- architect of the commis.sioneVs shall be the arbiter “as to the character of the work done,' or materials furnished” under the contract, his decision “in every event to be final, binding and conclusive on- the parties hereto.” Copies of the foregoing contracts were duly filed by plaintiffs in connection with their averment to the effect that the total cost of grading and paving the roadways surrounding the Hall, at $3.5Q per square yard, was $62,571.32, and the total cost of grading Broad street, at 62 cents per cubic yard, $771.59, in all, $63,342.91; that defendant company agreed to pay one fifth thereof, $12,668.58, but refused to do -so, and the same has been paid to said legal plaintiffs by the city of Philadelphia.

' The first ground of defence presented in defendant’s affidavit is that the contract, a copy of which was filed, “is not such an instrument of writing as entitles the plaintiff -to have and require of the said defendant an affidavit of defence thereto.”

In his opinion, discharging the rule for judgment for want of a sufficient affidavit of defence, the learned judge says: “The instrument sued on in the present case is an agreement to pay for work to be done thereafter. On the face of the paper there is no proof that the work was ever done at all, and the proof cannot be supplied by an averment.”

As we have seen, the application of this rigid rule would exclude bills of exchange, negotiable notes, etc., in suits against parties secondarily liable thereon. There is nothing in the phraseology of the Act, requiring that every fact necessary to entitle plaintiff to recover, should appear on the face of the instrument. The “practical formula,” referred to by the learned judge, viz.: “ Whether the instrument itself makes so complete a case that a jury can give a verdict upon it alone without other evidence,” is wholly unwarranted; and, if sanctioned, would so curtail and cripple the operation of the Act as to render it comparatively valueless. It follows that the reason assigned for discharging the rule is erroneous.

The only remaining question is whether the affidavit of defence contains any averment of fact that entitles defendant to a jury trial.

It is not denied that the work of grading and paving, referred to in the contract, was done, nor that the contract price and amount thereof are correct^ stated in plaintiff’s averment, nor that the character of the work done and materials furnished were duh' approved b3r the architect of the commission, and the proper certificate issued to the legal plaintiffs, nor that defendant company refused to pay its proportion of the cost of the work, and that the same was thereupon paid by the use plaintiff; but the affidavit does aver that the work was not “ completed in accordance with the said contract and specifications,” and then proceeds to say that five samples of asphalt, taken from said pavement, were left with “ an expert to determine if the pavement was laid of the quality and kind required by said contract and specifications.” This is followed by a copy of the expert’s analysis of three of the specimens submitted to him, showing a deficiency of carbonate of lime and an excess of sand. To that is added an averment that defendant believes and expects to be able to prove the facts set forth in.the analysis are true. The affidavit then concludes as fol•lows: “Defendant is advised that, as said roadway is not substantially conformable to said contract and specifications and does not constitute an equivalent, no liability to pay for the same arises on the contract entered into by said defendant.” In this connection, however, defendant’s belief “that no liability to pay” arises, etc., is not averred. It is one thing for a defendant to say he is advised or informed that certain facts exist, and that they create no liability; but it is quite a different thing for him to swear that he believes and expects to be able to prove they are true and constitute a valid defence.

It will be observed that the alleged defence on the merits is grounded solely on the allegation of deficiency in one of the ingredients and excess in another, as reported by the expert. But of what consequence is that, if the work done and materials furnished were approved by the architect? As we have seen, the architect of the commission is made sole arbiter as to the character of the work done and materials furnished, and his decision is expressly declared, “ under all circumstances and in every event to be final, binding and conclusive on the parties.” This being one of the “terms and conditions” to which the company defendant assented, how can it expect to evade the consequences of its covenant without such an averment of facts as will entitle it to go behind the approval of the architect and acceptance of the work, as having been performed according to the terms of the contract? It had no right to silently wait until the work was finished, approved by the party designated for that purpose, and taken off the hands of the contractors, and then, on some frivolous pretext, refuse to pay its proportion of the cost.

In view of the provisions of the contract to which defendant is a party, there is nothing in the affidavit of defence, assuming it all to be true, that entitles the company to a jury trial.

Judgment reversed, and record remitted to the court below with directions to enter judgment against defendant, as to right and justice may belong, unless other legal or equitable cause be shown to said court why such judgment should not be entered.