Practice, C.P. — Statment of claim — Affidavit of defense — Practice Act 1915, Sections 6 and 8.
In an action of assumpsit to recover upon a contract for the installation of a heating plant, the statement of claim contained an averment that when the legal plaintiff assigned his rights under the contract to the use plaintiff, defendant signed a letter certifying that the work done had been completely carried out under a written contract.
The affidavit of defense averred that the work was done under an oral contract; that it was not satisfactorily performed; and that the letter was signed by defendants, who were unable to read, upon the false representation that it was a receipt for a sum of money paid to the legal plaintiff.
In such case the affidavit of defense was sufficient to prevent judgment.
The pleading of the letter alleged to have approved the contract was a matter of evidence, and defendant's failure to specifically traverse it did not entitle plaintiff to judgment.
Section 8 of the Practice Act, following the ancient rule on the subject, forbids the pleading of evidence.
While it is true that Section 6 of the Act provides that every allegation of fact in the statment of claim, if not specifically, or by necessary implication, denied, should be taken to be admitted, this provision manifestly was not meant to apply to averments made in contravention of the express prohibition of the statute itself.
Argued October 20, 1927.
PER CURIAM, March 2, 1928:
This order is affirmed on the opinion of the common pleas.