
    Manolakis v. American Railway Express Company.
    
      Statement — Failure to state whether contract was oral or written — Amendment — Practice Act of May 1%, 191,5, as amended by Act of May 23,1923.
    
    Where a statement does not conform to the reauirements of the Practice Act of May 14, 1915, P. L. 483, in that it does not state whether a contract sued upon is oral or written, the statement will not be stricken off, but, under the power given the court by the Act of May 23, 1923, P. L. 325, the plaintiff will be allowed ten days to amend.
    Rule to strike off statement. C. P. Lancaster Co., Aug. T., 1923, No. 123.
    
      Zimmerman, Myers & Kready for rule; John M. Groff, contra.
    Jan. 15, 1927.
   Hassler, J.,

We are asked to strike off plaintiff’s statement in this case for two reasons. The first is because the plaintiff does not say whether the contract, for the breach of which he seeks to recover, is oral or in writing.

Section 9 of the Practice Act of May 14, 1915, P. L. 483, requires a plaintiff in an action on a contract to state whether it is oral or written. Section 21 of the same act authorizes courts to strike off statements that do not conform to its requirements.

It has been the practice to strike off statements that do not state whether a contract upon which an action is based is written or oral: Curtis v. Bortree, 26 Dist. R. 1056; Gilmer Bros. v. Walker, 29 Dist. R. 510; Philadelphia Gear Co. v. Climax Machine Co., 29 Dist. R. 493.

Since these cases were decided, section 21 of the Act of May 14, 1915, P. L. 483, has been amended by the Act of May 23, 1923, P. L. 325, so as to authorize the court to permit the parties to amend their pleadings in proper cases instead of striking them off.

There is no merit in the second reason on which this application is based, as the damages claimed are properly set forth.

As the statement in this case does not conform to the requirements of the Act of 1915, in that it is not stated in it whether the contract upon which the action is based is oral or written, it is defective, and we will discharge the rule to strike it off, if the plaintiff, within ten days of filing this opinion, amends it by stating whether the contract upon which the action is based is oral or written; otherwise the rule is made absolute.

Prom George Ross Eshleman, Lancaster, Pa.  