dissenting:
I concur in the view that the matters of defense to the action are inadequately stated. The sufficiency of the averment respecting the damages arising from a difference in weight between the paper contracted for and the paper delivered might perhaps be tested by a computation, based on the particulars given in the declaration; but when averments are based on computations, these ought to appear in the affidavit; the court should not be required to make them, or to search the affidavit and declaration for the factors involved. I also regard the declaration and the copy of book entries as sufficiently connected to show that the defendant is the party to whom the entries relate. And if nothing further appeared in the case respecting the cause of action, I should not question the correctness of the judgment entered in the court below.
There are, however, other grounds on which I must regard the judgment as erroneous.
On a rule for judgment for want of a sufficient affidavit of defense, but two questions are presented: (1) Whether the declaration sets forth, in conformity with the essential legal requirements, a cause of action on which the plaintiff is entitled to recover; (2) whether the reply sets up matters of defense sufficient to bar a recovery. It is only when the first question is answered affirmatively that it becomes necessary to consider the second, since a substantial defect in the declaration is fatal to the plaintiff’s demand for summary judgment.
I feel constrained to dissent from the affirmance of the judgment, for the reason that a substantial defect in the declaration is made to appear. Under the procedure act of May 25, 1887, the declaration “shall be accompanied by copies of all notes, contracts, book entries, .... upon which the plaintiff’s claim is founded.” Of this requirement our Supreme Court has said: “ This is not merely directory; it is absolutely imperative; and if the copy of the written or printed contract on which the action is founded, or any part thereof, does not accompany the statement, and its absence is not satisfactorily accounted for, the omission cannot be supplied by averments of the contents or the substance of the missing paper: ” Acme Mfg. Co. v. Reed, 181 Pa. 882. Here the affidavit alleges that the plaintiff’s claim is founded on a written contract, which is set forth in extenso; *32and the plaintiff is estopped from denying this, since the rule for judgment assumes the truth of the averments in the affidavit. The failure to accompany the declaration with a copy of this contract is a substantial defect, which bars judgment for want of a reply or of a sufficient reply by affidavit. Nor is this failure supplied by the copy appearing in the reply. The declaration must be complete within itself, setting forth all the essentials of a cause of action, and' meeting all the requirements of the statute, without, support from the reply. The cause of action must be found within its four corners and in the written matters with which, under the statute, it must be accompanied. It is a settled rule of pleading that a substantial defect in the declaration is not aided by pleading over on the part of the defendant. “ A judgment for want of a sufficient affidavit of defense is, in effect, a judgment on demurrer: ” Fritz v. Hathaway, 135 Pa. 274. On demurrer, the court will consider the whole record, and give judgment against the party in whose pleading the first fault appears, notwithstanding defects in the subsequent pleading of his adversary. A defective plea is a sufficient answer to a defective declaration ; in fact, under the procedure act of 1887, a defective declaration requires no reply: Gould v. Gage, 118 Pa. 559; Byrne v. Hayden, 124 Pa. 170; Gere v. Unger, 125 Pa. 644; Barr v. McGary, 131 Pa. 401; Fritz v. Hathaway, 135 Pa. 274; Campbell v. Pittsburg, etc., Railway Co., 137 Pa. 574. That the exhibition, in the reply, of a defect in the declaration, cures that defect, is a proposition to which I cannot assent; nor can I assent to its use in support of the plaintiff’s claim when submitted, in good faith, as here, to show a defect in the declaration: Bartoe v. Guckert, 158 Pa. 124. It is only by exhibiting .the alleged contract to the court that the question of the sufficiency of the declaration, without an accompanying copy, "can be raised; and this, going as it does to the plaintiff’s right to summary judgment, must be done in the reply. A denial, in the reply, of the sufficiency of the declaration, is in the nature of a demurrer, and if the declaration is defective the plaintiff is not entitled to judgment: Byrne v. Hayden, supra. And, as I view the case, it is not tnaterial whether this question was raised in the court below. It arises directly from the declaration and affidavit. In discussing the sufficiency of the declaration, in Fritz v. Hatha*33way, supra, the Supreme Court says : “ It is said that these objections were not made in the court below, and therefore should not be heard here. But the specifications of error raise the question of the sufficiency of the statement; and, as there are no pleadings on a rule for judgment, there is nothing in the record before us to show whether the particular objections now insisted on were urged in the court below or not. But even if in fact they were not, it would make no difference, because a judgment for want of a sufficient affidavit of defense is, in effect, a judgment on demurrer.” Here the question is raised by the specification that the court erred in making the rule for judgment absolute; and if, upon consideration of the declaration and reply, it appears that this was error, the specification is sustained: Gould v. Gage; Byrne v. Hayden; Barr v. McGary; Campbell v. Railway Co., supra. In the case last cited, the action was founded on a decree made by the United States circuit court, sitting in another county, and the declaration was not accompanied by a copy of the record. So far as shown by the report of the case, this omission was not alleged in the reply, nor referred to in the argument; yet it was the first point discussed in the opinion of the Supreme Court, and the declaration was held defective by reason thereof.
The statutory provision, that a copy of the contract on which the action is founded shall accompany the declaration, being “ absolutely imperative,” it can serve no purpose to conjecture its object or to consider whether the plaintiff’s failure to comply with it is prejudicial to the defendant. The requirement is mandatory, and its nonobservancé by the plaintiff leaves the declaration defective on a material point.
The case presents an attempt by the plaintiff to recover on a count for goods sold and delivered, while suppressing the written contract on which the claim is founded and the sale and delivery were made. The omission of the contract is the first fault in the pleading; therefore judgment should be given against the plaintiff, notwithstanding the defects in the reply.