Ogden v. Beatty

Opinion, Mr. Justice McCollum: It is averred in the affidavit of defence that the notes and account in suit represent the price of yarn purchased by the defendant of the plaintiffs, by sample which he ■ exhibited to them; that the yarn delivered by the plaintiffs to the defendant was inferior in grade and quality to the sample shown, and that, in consequence thereof, he has sustained damage to the amount of many thousand dollars in excess of the sum demanded by the plaintiffs. It is to be noted that neither the quantity, market price, or quality of the yarn purchased or of the yarn delivered, is stated in the affidavit. It contains, in general terms, a suggestion of a loss of custom and a cancellation of contracts, as a result of a breach of warranty, but it is clearly deficient in the statement of specific facts on which to rest the legal conclusions invoked. It does not allege that the plaintiffs were manufacturers of yarn, that the defendant was a manufacturer of cloth, or that the former knew for what purpose the yarn was purchased by the latter. Its inferences and conclusions are not authorized by its facts. There is nothing in it on which to ground a claim for damages, embracing loss of custom or a cancellation of contracts. Where goods are sold with a warranty of quality, and are retained by the purchaser, the measure of damages for a breach of the warranty is the difference between the market value of [202] the goods contracted for and of the goods delivered. In an action for the price of the goods, the purchaser may interpose this difference as a defence pro tanto. If an affidavit of defence is required, it should contain a clear and concise statement of the facts which constitute a basis for an assessment of the damages under the legal rule by which they are measured. All the elements of a defence should appear with reasonable certainty in the affidavit, and, if any fact essential to complete the defence is omitted, the affidavit is insufficient. In the present action, the defendant alleges that he has sustained great loss by reason of claims made on him by his customers, and their cancellation of contracts with him, because of the low grade and inferior quality of the yarn; but he has not stated a single fact which would make these matters proper items of damage on a breach of the warranty. An affidavit so vague and evasive, and so radically wrong in its conclusions, upon the few facts it contains, cannot be approved. In the absence of an averment to the contrary, it is fair to presume that the yarn was inspected by the purchaser when he received it, and that he then, knew its grade and quality, and made no complaint as to either. The judgment is reversed; and it is ordered that the record be remitted to the court below, with direction to enter judgment against the defendant for such sum as to right and justice may belong, unless other legal or equitable cause be shown why such judgment should not be entered.* Footnotes [*] See Titusville Iron Works v. Keystone Oil Co., 130 Pa. 211.