EISENHAUER V. MEISER

may be either way. Thus case was sustained against an attorney for neglecting to recover a debt (6 Barr 361), and against the owners of a stage-coach for an injury to a passenger (4 W. & Ser. 179). In the latter case it was said that the plaintiff had his choice to bring assumpsit on the contract, or case as for a breach of duty."

In Horney v. Nixon, 213 Pa. 20, on page 24, it was said: "When the gist of the action is a breach of duty and not of contract, and the contract is not alleged as the cause of action, and when from the facts alleged, the law raises the duty by reason of the calling of the defendant, as in the case of innkeepers and common carriers and the breach of duty is solely counted upon, the rules applying to actions ex delicto determine the rights of the parties." See also to the Shreeve v. Adams & Co., 6 Phila. 260.

same effect

Thus we see where there is an express promise and a legal obligation results from it, then the plaintiff's cause of action is in assumpsit, in which the promise is stated as the gist of the action, but where a duty is imposed by the contract or grows out of it by legal implication, as the duty of a common carrier to carry a passenger safely or the duty of a farrier to treat a horse carefully, the action may be in either assumpsit or case. In the case at hand the gist of the action is the breach of the written contracts in the failure to pay the several obligations of plaintiffs as provided in the written agreements. Therefore the action should be assumpsit.

The objection to the form of the action must be sustained, but the plaintiff's should be allowed to amend the pleadings.

And now, January 12, 1918, the objection that the plaintiffs' action should be assumpsit and not trespass is sustained and the plaintiffs are allowed ten days time in which to amend their pleadings so as to conform to this opinion, after which the defendant will file his affidavit of defence as required by law.

EISENHAUER v. MEISER. (No. 2)

Assumpsit-Statement-Sufficiency of statement-Insufficient

affidavit of defense.

In an action of assumpsit where the statement is somewhat obscure and could be made plainer, but where it may be understood upon study, a motion to strike statement from the record or for a more specific statement was overruled.

When payment is set up in an affidavite of defense, the facts upon which the defendant relies must be set out with sufficient detail to enable the court to judge of their sufficiency. The affidavit of defense should set out to whom the payments were made, when they were made, the manner in which they were made, and the actual amounts of the different payments.

Common Pleas of Snyder County. No. 50 October Term, 1917. H. E. Eisenhauer, H. L. Eisenhauer and C. R. Eisenhauer, lately trading and doing business as Eisenhauer Brothers v. C. A. Meiser. Assumpsit. Motion to file more specific statement. Rule for judgment for want of a sufficient affidavit of defense.

Jay G. Weiser, Esq., and H. H. Grimm, Esq., for the Plaintiffs.

Charles P. Ulrich, Esq., and M. I. Potter, Esq., for the Defendant.

JOHNSON, J., April 5, 1919.-We have in this case for disposition the motion to strike from the record the present statement or to file a more specific statement and also a rule for judgment for want of a sufficient affidavit of defense.

While the statement is somewhat obscure and could be made plainer and more specific we think it may be understood upon study and therefore it is sufficient. The motion to strike the statement from the record or for a more specific statement must therefore be overruled.

In support of the rule for want of sufficient affidavit of defense the plaintiffs assign the following rea

sons:

"First:-The affidavit of defense is insufficient. "Second:-The defendant alleges payment of certain merchandise bills, which he had assumed to pay, but does not state how, when and what amounts he paid on said bills.

EISENHAUER V. MEISER

"Third:-That the defendant has not exhibited to the plaintiffs, an account as he was requested by the plaintiffs and was required to do by the 11th section of the Practice Act of May 14th, 1915, thereby showing what bills he paid, whether paid partially or in full.

"Fourth-That the affidavit of defense is too general and evasive."

When payment is set up in the affidavit of defense as a defense to the plaintiffs' claim the facts upon which the defendant relies must be set out with sufficient detail to enable the court to judge of their sufficiency; Marston v. State Hospital, 18 Pa. Superior Ct. 547; National Bank v. Stadelmann, 153 Pa. 634. The affidavit of defense should set out to whom the payments were made, when they were made, the manner in which they were made and the exact amounts of the different payments; Hiestand v. Williamson, 128 Pa.

122.

In McCracken v. First Ref'd Pres. Congregation of Pittsburgh, 111 Pa. 106, it was held that: "Where the defense set up in an affidavit of defense is payment pure and simple, it must be stated with particularity as to the true amount and manner of payment, and also the person or persons to or by whom the same was made." In Hiestand v. Williamson, 128 Pa. 122, where payments were set up as a defense it was held that it should have been set out in the affidavits "with a reasonable degree of particularity how and when the payments were made." Thus we think the affidavit of defense is insufficient. It should show the exact amounts paid, how paid, when paid, to whom paid, and by whom paid. The plaintiffs asked that the court order the defendant to exhibit a true and correct account of the payment of the merchandise, bills, claims, etc., together with the receipts and vouchers of the various amounts paid. Section 11 of the Act of May 14, 1915, P. L. 483, provides as follows: "If the plaintiff avers that the defendant has received moneys as agent trustee, or in any other capacity for which he is bound to account to the plaintiff, or if the plaintiff

EISENHAUER V. MEISER

is unable to state the exact amount due him by the defendant, by reason of the defendant's failure to count to him, the plaintiff may ask for an account." In this section the plaintiffs are entitled to an exhibition of the defendant's account together with the receipts and vouchers of the various payments. And an order for said exhibition must be made. Though the question is not directly raised by the pleadings whether the defendant must account to the plaintiffs if he has paid the bills which he agreed to pay by amounts less than the actual amounts of the bills, it may be well to state that we are inclined to hold that the defendant was acting as an agent of the plaintiff in the payment of the bills in question and that where a less amount than the actual amount of the bill was paid by the defendant that the plaintiffs would be entitled to the difference between the amount paid and the actual amount of the bill which was agreed to be paid. The defendant was required to pay bills to the actual amount agreed upon. If a less amount was paid the plaintiffs should be entitled to the difference.

And now April 5, 1919, the motion to strike off plaintiffs' statement or to order a more specific statement is dismissed; the rule for judgment for want of a more specific affidavit of defense is sustained, but the defendant is allowed to amend his affidavit of defense within fifteen days in accordance with this opinion; and an order is made on the defendant to exhibit a true and correct account of the payment of bills and claims together with receipts and vouchers.

Orphans Court of Snyder County

IN RE ESTATE OF GEORGE C. FISS.

Decedent's estate-Wills-Election by widow to take under willBinding force of election.

Where a widow, having elected to take under the will of her deceased husband, with full knowledge of the provisions thereof, the extent of her husband's property and the nature of the paper she signed in making her election, she is bound by such election, and her petition to withdraw her election and to be allowed to take under the will must be refused.

Orphans Court of Snyder County. In re Estate of George C. Fiss, late of Monroe Township, deceased. Rule to show cause why the widow's election to take under will should not be withdrawn.

George B. Reimensnyder, Esq., and II'. J. Sanders, Esq., for the rule.

Charles P. Ulrich, Esq., and H. A. Coryell, Esq., for the Respondent.

JOHNSON, J., January 25, 1918.—This is a rule on R. C. Fiss, executor of George G. Fiss, deceased, to show cause why the election of Maria C. Fiss, widow of George G. Fiss, deceased, to take under her husband's will should not be withdrawn and the widow be allowed to take under the law.

George G. Fiss died May 20, 1917, testate, without issue, leaving to survive him a widow, Maria C. Fiss. That part of the decedent's will which disposes of his property provides as follows: "I give and bequeath unto my beloved wife, Maria Fiss, all my real estate consisting of a frame house and lot of ground with all minor outbuildings thereon, situate in the Village of Shamokin Dam, Snyder Co., Pa., during her natural life, and after her death, I give and bequeath the said house and lot with all minor outbuildings unto the heirs of R. C. Fiss, namely, Minnie, Anna, Justus and Ira Fiss, in fee simple and forever, Provided the said heirs of R. C. Fiss pay over to Lizzie Strawser, nee Kunkel, and Anna Fauz, nee Kunkel, the sum of four hundred dollars each, or eight hundred dollars combined to the two of my nieces.