Knapp v. Duck Creek Valley Oil Co.

The opinion of the court was delivered, by Thompson, J. The questions of law involved are the same in each of these cases, and hence we consider them all together. We think the plaintiff below was not entitled to judgment in either, without considering whether the affidavits of defence were sufficient or insufficient, because of a failure on part of the company to comply with the rule of court entitling it to judgment for want of an affidavit of defence. Rule 8 of the Common Pleas, liké the 2d section of the Act of the 28th March 1855, requires a copy of the “ instrument of writing,” which is the foundation of the action, to be filed with the affidavit of claim, accompanying the praecipe. The rule is imperative, and a compliance with [189] it must appear in order to sustain the judgment predicated of it. There is a class of cases in which there being no instrument of writing, a special statement of the contract on which the claim is founded is all that is necessary; but that is not like the cases before us. The suits in all these cases were instituted to recover an alleged subscription by each of the defendants to the stock of the company. Of course it was in writing, the word “ subscription” implying that. The affidavits of claim concede this by averring that true copies of the subscription are set forth, excepting in one of the cases, Bissell v. The Company, in which that is omitted, and no copy of claim.filed.' It will be readily seen, that the copies filed are not copies of the subscription, and they bear on these points a palpable contradiction of the averment that they are true copies. If they are, there is no contract in writing; for the company whose stock is subscribed for is not even named in them. In the first of the above cases the copy of the instrument is thus set out:— “ We, the undersigned, hereby agree to take of the above stock upon the terms named, the number of shares set opposite our respective names. “ J. M. Knapp, . . . 500.” This is manifestly not an instrument of writing for the payment of money, if it be a true copy. There is not a word about money in it. The affidavit avers that the defendant -was indebted to the plaintiffs in the sum of $500, with interest from July 1st 1865, by reason of his subscription for 500 shares of the capital stock of the said Duck Creek Valley Oil Company, at the par value of $1, “ a true copy of which subscription is hereto attached,” &c. The instrument claimed as the contract is either not set forth, or it is not one for the payment of money ; and yet it is upon this, as such- instrument, that judgment was entered. The case of a contract to pay money appears in the affidavit only ; but this is not a case in which by the rule judgment may be taken on an affidavit setting forth the contract. That only applies to a case where there is no contract in writing; but the affidavit says, the contract is in writing and is set out. But when we look at it, it shows no promise to pay in anything, or anything that would negative the idea that it is not already paid for — full paid stock. More than this; it is manifest that whether there be a contract to pay money or not in the subscription as made, the subscription is not set out as it exists: 1st. No company is named in the subscription before us, to whom'the promise is made. 2dly. The “ terms” upon which the stock is subscribed; when payable ; in what amounts; upon what calls usual in stock subscriptions — these are not set out, yet they existed, or others, as the imperfect copy [190] we have shows. 3dly. No date appears ; and lastly, no amount of' money is shown to have been promised by the instrument. All these, at least the name of the company, the terms, amount agreed to be paid, must be in the contract, if we credit the affidavit of claim; and by inspecting what we have before us they are not in the copy filed. The object of the requirement to set out a copy of the claim is twofold: — to give notice of the precise subject of suit to the defendant, and to enable the court to see that the claim is within the rule. It is a good rule and a convenience in practice, in simple money claims; but as it is somewhat summary in concluding the defendant by judgment — if ho cannot dispute it — it is but right that the requirements be fully complied with. That the defendant makes this as a mere technical objection and put-off, is not true, for he has filed an affidavit of defence, jvhether sufficient or -not we do not say, for the reason that the plaintiff is not entitled, on account of the difficulties noticed in his path, to judgment. In the fourth of the above cases, the copy of claim filed is identical with that in the preceding, which is the first case, and is subject to the same objection noticed in that case. We think in neither was the plaintiff entitled to judgment for want of an affidavit of defence, for the reasons given. In the second of these cases there is the copy of claim accompanying the affidavits:— “ We do hereby agree to take and pay for the number of shares set opposite our respective names. “ John L. Dawes. Two hundred and fifty. 250” Of what stock ? At what price ? When or where to be paid ? This, like the others, is not an instrument of writing in form for the payment of money. No.argument can convince anybody of this. It is possible the entire subscription contract might give us such an instrument as would come within the affidavit rule, but this does not. The affidavit of claim, while it may properly set out matters necessary in taking judgment on the written contract, dehors the contract, still the writing must contain the contract where there is one. An illustration of this is to be found in the Bank of U. S. v. Thayer, 2 W. & S. 443, and might be further illustrated by the necessity of setting forth calls made where the subscription is otherwise such as to be within the rule. Here the affidavit is treated as everything, and the written contract nothing, although it ought to be the foundation of the claim ; nothing so far at least as setting forth a contract. But as there is an instrument of writing averred, the former cannot avail to supply the place of the latter. And as the former is not such as [191] to entitle the plaintiff to judgment, at least as it appears on the record, the court erred in granting judgment thereon. In the third of the above cases, there was no copy of claim filed, although, like the others, it was an action to recover a subscription alleged to be made to the stock of the Duck Creek Oil Company. The affidavit of claim sets forth that the defendant is a “ subscriber for one thousand shares of the capital stock of said company, and that the sum of one thousand dollars is due and remains unpaid,” and that the forfeiture of the defendant’s stock would be of little value, and “ would deprive the company, in such case, of much, if not all, of'the amount of the defendant’’s said subscription.” If indebted to the company by a subscription, which implies a writing, why was not a copy filed ? It is manifestly the foundation of the claim, judging thereof by the affidavit of claim. The absence of it is not a defective compliance with the rule of court merely, but a disregard of itand it surely is not entitled, upon any natural principle, to the fruits of a strict compliance. It has been suggested in some of these cases that it was only necessary to set forth so much of the subscription contracts as to' inform the defendant that it was upon such contract that the suits are founded. The only answer that is necessary to give to this ‘position is, that this is not the rule of court. That says the whole must be set forth; and this, of course, can only be done by giving a true copy. Non constat if the whole were given, there might be something which would benefit the defendant. It might appear to have been made on conditions not performed by the company, and therefore inoperative as to the defendant. The suggestion that all that was necessary for the information of the defendant was given, is a concession that the whole was not given, and proves that this rule is not complied with. It has also been argued, with the appearance of plausibility, that the want of a copy of the claim, or when a partial copy only is given, the defects must be taken advantage of in the affidavit of defence. This is a very illogical view, in my opinion. In order to entitle the plaintiff to judgment under the rule of court, it was bound to do certain things, among which was the requirement to file a copy of the instrument on which suit was brought. This it was bound to do, not only in compliance with the rule, but as a legal foundation for a judgment under the rule. It was therefore not for the company to say to the defendant, you should have advised us that you required this by saying so in your affidavit. The rule of court was intended to apprise the plaintiff what it had to do in order to obtain judgment. The want of compliance with what that required might be taken advantage of ore temos, as well as in any other mode. There may be cases where this defect might doubtless he considered a waiver. Generally [192] a waiver is presumed only where there is some apparent advantage to be gained by it. At all events, the waiver must appear to have been intended. We should infer that nothing was waived here ; no inducements to waive the defect appear. ' On the contrary, in all the cases affidavits of defence were filed, good at least to show plainly that the rule was intended to be insisted on. Indeed, for aught that appears on this record, the objection was made below. Certain it is, we cannot say it was not. We see no evidence of an intended waiver of the requirements of the rule by the defendant, and the plaintiff must be held to it. The pse of Phila. Savings Ins. v. Smith, 10 Barr 13, has been considered, although not cited. That decision was under the Act of Assembly of 1855, and there was no affidavit of defence at all. This court seems to have been of opinion that although the case might not have been strictly within the Act of Assembly, yet, as there was no denial of the plaintiff’s claim by affidavit, and judgment having been entered without objection manifested in any way by the defendant, they would not reverse. The copy of claim was correctly given; and, as the defendant interposed no objection until after judgment, it was affirmed. That is not like the cases before us. We have no copy of claim at all filed, and affidavits of defence in all of them. It may be some of them are defective, but they served to show that the defendants waived nothing. Without enlarging, we are of opinion that the judgment in each of these cases should be reversed. Judgments in all the cases reversed, and procedendo awarded.