Murdock v. Martin , 132 Pa. 86 ( 1890 )

Opinion,

Mr. Justice Clark :

The new procedure act of May 25, 1887, P. L. 271, so far as it has any relevancy to this case, provides that the plaintiff’s declaration, in the action of assumpsit, “ shall consist of a concise statement of the plaintiff’s demand, as provided by the fifth section of the act of the 21st day of March, Anno Domini one thousand eight hundred and six,” which “ shall be accompanied by copies of all notes, contracts, book-entries,” etc., “ upon which the plaintiff’s claim is founded,” etc.; the statement “ shall be signed by the plaintiff, or his attorney; ” and, “in the action of assumpsit, shall be replied to by affidavit; ” and “judgment may be moved for for want of an affidavit of defence, . . . for the whole or a part of the plaintiff’s claim, as the case may be, in accordance with the present practice in actions of debt and assumpsit.”

The fifth section of the act of March 21, 1806, provides that the plaintiff, in certain cases, shall file “ a statement of his, her, or their demand, particularly specifying the date of the promise, book-account, note, bond, penal or single bill, or all or any of them, on which the demand is founded, and the whole amount that he, she, or they believe is justly due to him, her, or them from the defendant.” The requirement of the act of 1887, therefore, is that the statement shall be such as is provided by the act of 1806; that it shall be signed by the plaintiff or his attorney, and shall be accompanied by a copy of the obligation in suit.

The act of 1806 does not oblige the plaintiff to disclose his case, in a statement, with the same nicety and precision of averment, as was required in a declaration, for that would defeat the very purpose of the statute: Boyd v. Gordon, 6 S. & R. 53. The object is merely to inform the defendant with reasonable accuracy of the nature and extent of the plaintiff’s claim: Purviance v. Dryden, 3 S. & R. 405.

The statement filed in this case sets forth that the action was brought “upon a written contract dated January 24,1884, made between the plaintiff and the defendants, together,” etc., whereof a true copy is annexed, “ for the recovery of the five per centum commission therein agreed to be paid to the plaintiff by the said firm; ” that “ the plaintiff has fully performed his part of the contract, and now claims in this action the said commission, from the date of the said contract, upon all deliveries and sales made by the said firm, as provided in the said contract.” The statement then proceeds as follows: “ The said commission amounts to a large sum, whose precise amount cannot be stated, and is only to be ascertained from the books of the said firm, to which access cannot be had by the said plaintiff ; the plaintiff believes and claims that the amount due him, and to be recovered in this action, will not exceed the sum of $100,000.” This is verified by the plaintiff’s affidavit, as to the truth of the matters therein set forth.

In the first more specific statement, subsequently filed, the plaintiff defines with more particularity the nature of his claim under the first, fourth, and fifth paragraphs of the contract, and states that the amount for which suit is brought is $50,000. In the second supplementary statement, the plaintiff undertook to set forth, in a schedule, some of the particular items of his claim, but claims, in addition thereto, commissions “upon all orders sent direct to the said defendants, and not passing through the hands or coming to the knowledge of the said plaintiff, but upon which the plaintiff is entitled to a commission, under the agreement sued upon.” The plaintiff in his statement then proceeds to say that he “had no connection whatever with the shipments, and cannot now give a detailed list of them; that they are well known to the defendants, and could be easily furnished from their books, if access thereto would be permitted,” etc. To this also the plaintiff appends his affidavit.

Under the special circumstances of this case, as disclosed by the affidavits of claim, owing to the peculiar terms of the contract, and the methods of business adopted by the parties, was it possible for the plaintiff, in the preparation of these statements, to do more than he did? By the terms of the agreement Murdock was entitled, in any event, to commissions upon all sales in the cities of Boston, New York, and Brooklyn, Newark, and Jersey City, Philadelphia, Baltimore, and Chicago; and also in all such places as the purchasers doing business in these cities, respectively, had factories in which lampblack was used, and that, whether the sales were made through the plaintiff’s agency, or directly by the defendants. The plaintiff was also entitled to a commission upon all sales elsewhere, by whomsoever made, excepting as provided in clauses four and five of the contract. Whilst Murdock might be supposed to have an account of his own sales, made pursuant to his agency, he would know nothing of their consummation by delivery; much less could he be presumed to know of the sales which the defendants themselves made. The accounts were therefore necessarily in the keeping of the defendants, and were wholly within their knowledge and control.

Now, it is plain that, as the purpose of the legislature was merely to simplify the practice, it was certainly not the intention to require the plaintiff to embrace in his statement what, in the very nature of the particular case, he could not know, and the knowledge of which was wholly within the power of his adversary. If the agreement in suit had been, by accident, lost and destroyed, and no copy of it remained, would the plaintiff, after substantially stating its contents, be driven out of court upon a demurrer or a nonsuit because the statement was not accompanied by a copy ? Or if, in like case, the agreement in suit had come into the defendant’s hands, would it not be sufficient, after having given its contents substantially, to refer the defendants to the instrument itself, in their own hands, for the exact words and phraseology thereof? We think it would; and, if so, then it was certainly sufficient for the plaintiff, under the special facts of this case, having given a copy of the contract, the nature and extent of his claim under it, and the period of time covered by it, to refer the defendant to the entries upon their own books, for the ascertainment of the exact amount. That was certain, which was thus capable of being made certain. But it was simply impossible, if the statements filed are true, for the plaintiff to set forth the amount which he believed was justly due to him, for he could have no belief on the subject; even an estimate must necessarily have been founded on conjecture, and would have been little better than a guess. Having embraced in his statement all that he could know, he gave the defendants an opportunity, by inspection of their books and papers, to compute the exact amount which, according to the plaintiff’s own showing, was justly due him; and this was all, upon any reasonable application of the requirements of the act of assembly and the rule of court to this particular case, that could be demanded.

That a writ of error lies upon a judgment of nonsuit, thus entered, without the assent of the plaintiff, express or implied, there can be no doubt. The entry of a nonsuit, in such case, is a definitive decree: it ends the suit. The plaintiff may bring another action, but he is undoubtedly entitled to test the decree, which drives him out of court and charges him with the payment of the costs. This is not the case of a peremptory nonsuit, entered at the trial upon the insufficiency of the plaintiff’s proofs, under the act of March 11, 1875, P. L. 6, where a writ of error, by the express provision of that statute, lies only upon the refusal of the court to take the nonsuit off. The case of Haverly v- Mercur, 78 Pa. 257, has therefore no application.

We are of opinion that this nonsuit should not have been entered, and

The judgment is therefore reversed, and a procedendo awarded.