Maglaughlin v. Union Electric Steel Co.

Per Curiam, The court below refused judgment for want of a sufficient affidavit of defense and this appeal followed. Plaintiff entered into an agreement to dismantle, remove from Greensburg and reconstruct at Carnegie, boilers belonging to defendant corporation, at cost plus 20%; this work was done, and defendant paid certain [212] amounts on account; May 26, 1921, by written “trade acceptance,” defendant acknowledged its indebtedness to plaintiff in tbe sum of $3,640.11; September 28,1921, $500 was paid on this amount; subsequently, plaintiff sued to recover tbe balance. Defendant alleged certain latent defects in plaintiff’s work, but tbe latter contended that tbe trade acceptance precluded tbe setting up of these matters as a defense; tbe court below took tbei view that, since “tbe trade acceptance is still in tbe bands of tbe person to whom it was issued,” tbe affidavit of defense was sufficient to prevent judgment. On appeals like tbe present, this court never reverses unless clear and controlling error plainly appears (Commercial Motors Mfg. Corp. v. Stephenson, 274 Pa. 171); and this We do not find. In such instances, “we express no view on tbe issues involved”: Self v. Penna. Steel Co., 270 Pa. 226. Tbe appeal is dismissed.