#### Davis *v.*Tingley.

Davis and Tingley, in 1868, by a written agreement, agreed to form a partnership to manufacture and sell, under their joint patent-right, .a contracting band for casks. It was stated in the agreement that Tingley “ has recently added ” a revolving ice-cream machine, and that, in view of this important addition, Davis agrees to furnish $600, free of interest, as additional capital for the business. Otherwise they were to share equally the profits and losses. It was also stipulated that Davis should act as a silent partner, and that Tingley should carry on the business, and, further, do the mechanical work of the shop for a named compensation. In 1871, Davis and Tingley granted to Blatchley the exclusive right to manufacture an ice-cream machine, and the exclusive right to use the contracting bands in such manufacture, upon the payment of a royalty to “Tingley or his assigns.” In an action by Davis’s administrator, against Tingley, in 1888, to recover one-half of the royalties paid to Tingley by Blatchley, Tingley filed an affidavit of defence in which he averred that the agreement was never carried out; that $600 was not furnished by Davis; that the ice-cream freezer was never added ; that the expression “ has recently added ” was a mistake ; that the machine granted to Blatchley was not the same machine mentioned in the partnership articles ; and that Davis had no interest in the machine granted to Blatchley. The court discharged a rule for judgment for want of a sufficient affidavit of defence. Held, not to be error.

Jan. 17, 1889.

Error, No. 68, July T. 1888, to C. P. No. 1, Phila. Co., to review an order discharging a rule for judgment for want of a sufficient affidavit of defence, in an action of assumpsit by Elizabeth S. Davis, executrix of Samuel L. Davis, deceased, against John Tingley, at Dec. T. 1886, No. 14.

The plaintiff, in her statement, filed Jan. 13, 1888, claimed to recover $3,250, “being the proportion of receipts on royalties due said Samuel L. Davis, deceased, on account of *certain money,*collected by said defendant, Tingley, for the joint benefit of said Tingley and said Davis, as co-partners in a certain transaction with one Charles G. Blatchley, of the city of Philadelphia.” The statement further alleged that the partnership had been carried on until the agreement with Blatchley; that since then Tingley had received $6,500 in royalties from Blatchley, but had paid over only $30. A plea of non assumpsit was filed.

The articles of partnership, marked Exhibit A, was as follows:

“Memoranda of agreement, made Jan. 1, 1871, between Samuel L. Davis, of the one part, and Tingley, of the other part, witnesseth that the said parties hereby agree to form a copartnership for the manufacture and sale of articles under their patent, known as Tingley’s patent contracting band for. casks and other vessels, bearing date August II, 1868.

“ The articles hitherto manufactured under said patents consisted of churns, air-tight pails, oyster buckets, etc., to which list the said Tingley has recently ádded the very important improvement known as the new revolving ice-cream machine, which is to be the chief article to be manufactured at present under this agreement.

“It is understood that the work is to be carried on at present at the shop of the said Tingley, No. 338 North Fourth street, Phila*55delphia, and the said parties hereby agree to share equally the profits and expenses, with this exception only that, in .view of the very important addition of the freezer to the original list of articles made' under the said patents, the said Samuel L. Davis agrees to furnish $600 free of interest as additional capital for the business.

“ It is further understood that the said Samuel L. Davis shall act as silent partner, and that his name shall not be used or known publicly in connection with the business.

“ It is further agreed, on the part of the said Tingley, that he shall carry on the said business, making no radical changes without consulting the said Samuel L. Davis, and that the said John Tingley shall do the mechanical work of the shop for the present, for which he shall receive $20 per week, as compensation for labor, to be charged as expenses of the work, and he shall keep a correct account of all receipts, sales and expenses in a book provided for that purpose, which shall be constantly subject to the examination of the said Samuel L. Davis.

“ It is further agreed that this contract shall be binding for so long as both parties shall mutually agree to carry on the business.”

The agreement with Blatchley, dated June 6, 1871, marked Exhibit B, was as follows:

“ Whereas letters patent of the United States were issued to John Tingley and Samuel L. Davis, of the city of Philadelphia, on September 1, 1868, for a tightening band for vessels; and, whereas letters patent of the United States were issued to said John Tingley on June 6, 1871, for an improved ice-cream freezer, said patent being numbered 115,657; and whereas Charles G. Blatchley, of the said city of Philadelphia, is desirous of manufacturing and selling ice-cream freezers according to said letters patent numbered 115,657, and of employing, in such manufacture, the said patented tightening band; now, therefore, this instrument witnesseth that said John Tingley and Samuel L. Davis, as joint owners of said patent for a tightening band for vessels, and said John Tingley as owner of said patent for improved ice-cream freezer, for the consideration of one dollar to them paid by Charles G. Blatchley, of the city of Philadelphia, and for the further consideration to be paid by said Charles G. Blatchley to said John Tingley as hereinafter set forth, hath licensed and do hereby license the said Charles G. Blatchley as follows, to wit, to manufacture, in the said city of Philadelphia, in the state of Pennsylvania and elsewhere, if he shall desire, and there and elsewhere to use and to sell to others to be used or vended, ice-cream freezers according to said patent, No. 115,657, and to use and employ in such manufacture the said patent for a tightening band for vessels, and said Tingley and Davis do agree with said Blatchley that this license is and shall be exclusive, that is to say, during its existence said Blatchley shall have the sole and exclusive right to manufacture said patented ice-cream freezers within the United States, and in any and all parts thereof, and the sole and exclusive right to *56use or employ, on ice-cream freezers, the said patented tightening band; in consideration thereof the said Charles G. Blatchley has agreed and does hereby agree to pay to said John Tingley, or his assigns, as a royalty or license-fee, five per cent, of the gross amount of sales of said patent ice-cream freezers sold by him and his agents and on his account, such royalty or license-fee to be paid in full within twenty days after the thirty-first day of December of each year; and, in default of such payment being made for the period of thirty days after said royalty or license shall have become due and payable, then the license shall, at the option of said John Tingley, on notice to that effect in writing signed by him or his assigns and served upon said Blatchley, be determined and at an end; but said Blatchley shall nevertheless be liable for royalties and license-fees that shall have accrued at the time of such notice.”

Tingley filed an affidavit of defence, in which he averred that he was not indebted to the plaintiff nor to his testator in any sum whatever; that the money collected by him from Charles G. Blatchley, and for which this suit was brought, was not collected by him for the joint benefit of Samuel L. Davis and himself, nor did he ever make any contract to collect the said money for the joint benefit of said Davis and Eimself.

He subsequently filed the following supplemental affidavit of defence:

“ I did collect certain money from Chas. G. Blatchley under a contract in writing, a copy of which is annexed to plaintiff’s statement as Exhibit B. The money so collected was the five per cent, royalty spoken of in said contract, and was paid to me (as the contract shows) as the sole owner of patent No. 115,657, with which, or with the money so collected, the plaintiff had no interest whatever, and never claimed to have.

“Patent No. 115,657, in Exhibit B, is not the same and has nothing to do with the new revolving ice-cream machine spoken of in Exhibit A.

.“The agreement marked Exhibit A was never carried out. The $600 was never furnished by Davis, and the machine was never added. The expression ‘ has recently added ’ was a mistake. These facts he expects to prove on the trial of the case.”

The court discharged a rule for judgment for want of a sufficient affidavit of defence.

*The assignments of error*specified that the court erred, 1, in discharging the rule for judgment for want of sufficient affidavit of defence; 2, in not entering judgment for plaintiff against defendant for want of a sufficient affidavit of defence; and, 3, in holding that the affidavit and supplemental affidavit of defences of the defendant were sufficient in law to withhold entering judgment for plaintiff.

*Wm. C. Mayne,*for plaintiff in error.

Without disposing of the agreement of copartnership, either by denying its execution, or *57averring its dissolution anterior to the grant to Blatchley, the affidavits of defences are clearly insufficient. Davis *v.*Tingley, 19 W. N. C. 344; s. c. 7 Cent. 889.

The affidavit of defence does not show how the agreement was never carried out; Davis may have paid the $600, although he did not “furnish” it; it is not shown how the alleged mistake occurred.

Where the affidavit of defence does not specifically deny the cause of action as set out in the copies of the instruments sued upon, but simply avers a general denial of liability, it is clearly insufficient to prevent judgment. Bryar *v.*Harrison, 37 Pa. 236; Coil *v.*College, 40 Pa. 439; Blackburn *v.*Ormsby, 41 Pa. 97; Anspach *v.*Bast, 52 Pa. 356; Rising *v.*Patterson, 5 Wh. 320; Bardsley *v.*Delp, 88 Pa. 420; Woods *v.*Watkins, 40 Pa. 458; Comly *v.*Bryan, 5 Wh. 261.

In all of these cases, it will be noticed that the copies of writings sued upon were attacked; but, in this case, no attempt is made to contradict the instruments sued upon, but defendant simply passes them *by*and attempts to overcome their force by such generalities as “ is not indebted in any sum,” “ the money was not collected for their joint benefit,” “ no contract was made for their joint benefit,” “ the $600 was never furnished.” The insufficiency of such averments in affidavits of defences is vigorously met in the last expressions of the Supreme Court on this subject in Snyder *v.*Powers, 37 Leg. Int. 387, and McCracken *v.*Church, in Pa. 106.

The affidavit refers to patent No. 115,567 not being the same as that named in Exhibit A; the omission to annex copies, for inspection, is a fatal defect. Erie City *v.*Butler, 120 Pa. 374.

*Leoni*Melick, not heard, for defendant in error.

The agreement was a “ memorandum of an agreement to form a copartnership,” which the affidavit of defence says was never carried out.

The expression, “ the $600 was never furnished by Davis,” is not vague, for that was what he agreed to do — “ to furnish $600.”

Exhibit B does not show that the royalties were to be paid on both patents, but one dollar for the joint patent and the royalties on the patent owned by Tingley.

The plaintiff’s action is account-render. This appears from her statement, in which she complains that the defendant has not rendered an account, and that the defendant has received $3,250 for the joint benefit of Davis & Tingley. What part of the $3,250 is claimed does not appear, but if it be admitted that all of plaintiff’s affidavit is true and all of defendant’s affidavit false, we should still be in doubt as to what part of the $3,250 the plaintiff wanted, as Davis was but joint owner in one of the patents, and plaintiff’s interest would be subject to the contingencies of the copartnership business, so that the j udgment must be quod computet.

“Actions ex contractu, as adopted in the practice of this state, *58are: Account render, assumpsit, debt, convenant, detinue and annuity.” 2 T.-& H. P. § 1484.

Jan. 17, 1889.

The Act of May 25, 1887, which requires an affidavit of defence in all actions of assumpsit, has, for its true intent, as stated in § 8, p. 272, that it applies only to the then present actions of assumpsit, debt, covenant, trespass, trover and case, and the other actions then existing are in no way affected. Account-render is one of the other actions not affected.

Per Curiam,

Judgment affirmed.