-This is an action to recover the sum of $900 for goods and merchandise sold and delivered to the defendant by the plaintiff, as charged in plaintiff’s book of original entries. An affidavit of defence raising a question of law has been filed which raises but a single objection to the sufficiency of the statement, which is, that it does not allege whether the contract between the parties was in writing.
Section 9 of the Practice Act of May 14, 1915, P. L. 483, provides that a “statement of claim shall be as brief as the nature of the case will admit. In actions on contracts, it shall state whether the contract was oral or in writing.” In Hine v. Horn, 30 Dist. R. 499, Judge Endlich, in passing upon this question, decided that in an action on a book account, it is not necessary to allege whether the contract is oral or in writing. After considering the case of International Machine Co. v. Clay Co., 20 Luzerne Legal Reg. Reps. 440, in which the contrary was held, and Bartlett Garages v. Kaier, 15 Schuyl. Legal Rec. 81, in which it was decided that it was not necessary, Judge Endlich said: “We think the better reason is with the last-named decision. Charges made in a book of original entry import both sale and delivery of the goods to the defendant (Hubbard v. Tenbrook, 124 Pa. 291, 295), and it is that which in a suit upon a book account constitutes the plaintiff’s cause of action. Except what the law implies, there is no contract, written or oral, about it, and, therefore, there is nothing to be averred on the subject under the above provisions of the Practice Act.”
We agree with the conclusion arrived at by Judge Endlich in the case from which we have just quoted, that it is not necessary, under the Practice Act, for the plaintiff to allege in his statement whether the contract was oral or in writing. The question of law raised in the affidavit of defence is, therefore, decided against the defendant, and he is directed to file an affidavit of defence within fifteen days. From George Ross Eshleman, Lancaster, Fa.