Higgins Carpet Co. v. Latimer , 165 Pa. 617 ( 1895 )

Opinion by

Mr. Chief Justice Sterkett,

Inasmuch as both specifications of error, in effect, challenge the correctness of the court’s construction of its eighth rule, they may be considered together. If the rule was rightly construed there was no error in striking out defendant’s testimony and directing a verdict for plaintiff. This is the only question in the case.

The first section of the rule requires that in certain actions therein specified, “ the plaintiff shall file with or before his declaration a specification of the items of his claim, together with a statement of the facts necessary to support it, verified by affidavit, to which defendant shall, within the time hereinafter specified, file an answer verified by affidavit; and such items of the claim and material averments of facts as are not directly and specifically traversed and denied by the answer shall be taken as admitted.”

The next section declares: “ If the specification and statement be filed with the praecipe, they shall be taken as an affidavit of claim, and defendant shall, without further notice, file his answer thereto within the time required for filing affidavits of defence, which answer shall be taken as an affidavit of defence. If the specification and statement be not filed with the praecipe, the plaintiff shall, within fifteen days after filing the same, notify the defendant thereof, and defendant shall within fifteen days thereafter file an answer thereto.”

The third section declares: “ This rule shall apply to a specification and statement of set-off filed by defendant, who shall, within fifteen days after filing the same, notify the plaintiff thereof, and the plaintiff shall, within fifteen daj's after notice thereof, file his reply thereto, verified, by affidavit.”

The fourth section of the rule, after declaring that, “ no evidence will be heard upon the trial of the cause as to any facts not substantially alleged or referred to as ground of action or matter of defence in the statements then on file in the case,” provides for supplementary amendments of said statements, affidavits, etc.

The company plaintiff, strictly complying with the first section of the rule, filed with its praecipe a duly verified specification of the items of its claim, and averments of fact necessary to support the same, in connection with which it gave defendant credit for $2,481.67 on account, and claimed the balance as due and payable.

Without directly and specifically traversing or denying a single item or averment of fact in plaintiff’s statement, the defendant, in his answer, denies in the most general terms that he is indebted to plaintiff in the balance alleged, “ or in any part thereof,” and then avers “ that instead of being indebted to the plaintiff, the plaintiff is indebted to him in the sum of $168.62, for which amount he seeks a certificate in his favor upon the trial of this case.”

This is supported by averments of three items, in the nature of set-off, or counterclaims against plaintiff, one of which is damages for refusal to deliver forty-three pieces of carpet purchased by him from plaintiff at an agreed price, etc. After setting forth in a general way, but not as clearly as should have been done, the nature and amounts of the other two items, the answer contains the following averment: “ Defendant hereto attaches and refers to an itemized statement of the account between plaintiff and defendant, showing that plaintiff has been paid in full and that there is a balance of $168.62 due to defendant,” etc. Presumably, the “ itemized statement ” thus referred to was regarded by the defendant as a necessary part of his affidavit of defence, and, whether he so considered it or not, we should have been furnished with a copy thereof, so that £he entire defence, as presented to the court below, might be considered by us ; but, waiving this omission, we think the learned trial judge was clearly right in holding that the defence interposed was such as to bring it within the true intent and meaning of the third section of the rule. As already observed, not a single item of plaintiff’s claim nor a single averment of fact in support thereof, was specifically traversed and denied, and hence, as was his right under the rule, the plaintiff introduced them as admitted, and then rested. The defendant thereupon, assuming the burden, undertook to prove his counterclaim, when he was met by the objection that he had not complied with the rule as to notice. It is not a sufficient answer to say that the defence was not set-off and therefore the rule was not applicable. The first item of defence, as we have seen, is clearly a counterclaim for damages resulting from refusal to deliver certain pieces of carpet, etc. It may be that in the technical sense of the word the other items are not strictly “ set-off,” but the rule was never intended to have any such restricted meaning. It was meant to embrace every species of counterclaim that under our more liberal practice may be legally or equitably interposed as a defence: Bair v. Hubartt, 139 Pa. 96, and 27 W. N. C. 272. As was well said by our brother Mitchell in that case: “ The object of the rule .... is manifestly to reduce the contest at the trial to the points actually in dispute, and whenever any matter sought to be introduced at the trial, called bjr whatever name it may be, is such as to require notice to the other side, the object of the rule would seem to demand its application.” With the view of eliminating every uncontroverted fact, and thus narrowdng the controversy to the points actually in dispute, it is just as important that the plaintiff should be required to answer the counterclaim iuterposed by the defendant as it is that the latter should be called upon to specifically traverse and deny the items, etc., of the plaintiff’s claim. If the defendant had given the required notice in this case, non constat that the plaintiff could have denied, the items of his counterclaim. In that event, it would have been unnecessary to take up the time of the court in calling witnesses and attempting to make the necessary proof.

As a means of promoting justice and expediting the trial of causes, the rule under consideration has proved to be most valuable ; and its usefulness and efficacy should not be impaired by neglecting to enforce its provisions on all proper occasions.

We have no doubt as to the correctness of the learned judge’s construction of the rule in this case; but if we had, it would require much more than that to justify our interference. As has been frequently said, every court is the best judge of its own rules, and this court will not reverse for any construction unless it is manifestly erroneous and injurious: Coleman v. Nantz, 63 Pa. 178; Wickersham v. Russell, 51 Pa. 71; Gannon v. Fritz, 79 Pa. 303; Bair v. Hubartt, supra.

Judgment affirmed.