Pittsburg dispatch. [volume] (Pittsburg [Pa.]) 1880-1923, 1891-11-16
MUDDLE OVER AN ORGAN.

I
| A Strange State of Affairs Arising From q
Suit Against a Braddock Church "A
Very Unusual Opinion Handed Down by
Judge Stowe.
In the suit of Drake versus Irvine, IN
Common Pleas Court No. 1, reported in the
Pittsburg Legal Journal, Charles W. Scovel,
attorney for plaintiff, scored an interesting
point from the fact that Judge Stowe
granted it rather grudgingly. The question
at issue is where an affidavit OF
defense admits a part of plaintiffs
claim, and as to the rest, sets up
defense insufficient as to part, but good as
to the rest, the court has power to order judg-
ment for the part admitted and also for the
part not sufficiently denied or defended
with leave to plaintiff to proceed to trial
for the remainder of his claim.
Quare: as to the propriety of the prac-
tice.
Plaintiff sued for s.. .17S %, balance, due
for the building of an organ for a church
in Braddock, alleging contract price to be
81, ,500 The supplemental affidavit of de-
Tense sufficiently set up different contract
with plaintiffs agent, in which price was
to be 81 $50, and plaintiff and his agent to
give organ recitals to help pay the same.
Defendant also claimed additional payments
on account, leaving balance of $3.50 80,
and asked $500 on account of PLAINTIFFS
failure to perform his part of the agreement,
admitting $3.50 80 to be due.
Mr. Scovel held that the allegation of
damages was too vague to constitute a de-
tense and judgment was ordered for $3.50 80,
with leave to plaintiff to proceed to trial
for the remainder of his claim. 1t was
contended that plaintiff should have iudg-
ment for the part not sufficiently denied as
we'll as the part admitted with leave to
proceed. ETC., and several decisions quoted
in proof.
Judge Stowe in his opinion filed said he
did not think the defense in relation to
damages was so clearly and distinctly stated
as to comply with the rule of court by way
of setting up defense, If that were the
only defense alleged, but as there was a
good defense to a part of plaintiffs
claim outside this matter the ques-
tion was whether under the rules
practice judgment should be entered for the
sum not sufficiently defended, with leave to
go to a jury for the balance. The sugges-
tion that the rule may be so modified as to
raise that question is countenanced by the
VS. Poterie, 139 Pa ST., 1O1, but there is no
rule of this court that contemplates
any such proceeding. The purpose of
Rule II was to allow plaintiff to take judg-
ment for the admitted or not denied in
part by precipe filed in the prothonotary's
office, not by taking a rule for judgment for
such part. "While Il have no doubt
about the power, 1 very much doubt the
propriety of a practice allowing Judgment
for part of the claim which is denied and
attempted to be defended by an allegation
of facts supposed by the counsel to be suf-
fcient, even when we are of the
opinion that there is no sufficient
defense actually shown. 1t would present
a curious record to have part of case in
the Supreme Court and perhaps reversed,
while at the same time trial for the bal
ance of the claim was before jury here.
However, as the Supreme Court has ap-
peared to sanction such practice and this
case appears to be one in which it should be
allowed, if ever, we direct q judgment to be
entered foe plaintiff for $3.50 so with leave
to proceed to trisl for the balance of his
claim" "