E. B. Weed & Co. v. Weinberger

Opinion by Beeber, J., After judgment had been entered against defendant for want ■of an affidavit of defense he obtained a rule to open it, offering nt the same time his affidavit of defense. After the taking of testimony in support of the facts alleged in his petition, and a hearing, the court below discharged his rule. From this order his appeal is taken. It is clear that if the affidavit of defense ■does not set forth a legal defense to the plaintiff’s statement, the judgment must be affirmed. The suit is brought to recover the price of certain cloth sold and delivered to the defendant on eight different days. The affidavit of defense says that certain of the cloth sold on two named dates “ was rotten, worthless and unmarketable, and of no value whatever,” and that when manufactured into clothing •and sold to customers, they returned it because the material was rotten and worthless; that defendant expended more than $250 in making said cloth into clothing, all of which was a total loss, u.nd that “ plaintiff represented and sold the cloth to him as a first-class article.” We do not think this affidavit is sufficient to prevent judgment. For aught that appears in it defendant received the identical goods which he purchased. He does not say that he ■ordered the goods without having seen them, and that they did not answer the description, nor that plaintiffs were manufacturers of the cloth and sold it to the defendant for a particular purpose, for which it was unfit, and if he will not say so, we will not infer it. So far as anything appears in the affidavit it was the usual sale on inspection. It is clear that in such sales the purchaser cannot defend on account of bad quality, unless there has been fraud by the seller inducing the sale, or a warranty: Heilbruner v. Wayte, 51 Pa. 259, and cases therein ■cited. If there has been deceit practiced by the seller it must be alleged with a scienter: Boothe v. Alexander, 4 W. N. C. 492. As was said by Mr. Justice Strong in Eagan v. Call, 84 Pa. 236 : “ It cannot be generally maintained that, where the buyer has had an opportunity of examining the article, there is any engagement implied in the contract of sale, that the seller warrants against latent defects unknown alike to himself, and to the purchaser.” Appellant insists that plaintiff in effect warranted the quality [15] •Of the goods because he “ represented and sold the cloth to him ” ,(the defendant) “ as a first-class article.” Although this language appears to be nothing more than the usual salesman’s ■puff, to treat it as a warranty does not help the defendant. “ Where goods are sold with a warranty of quality, and are regained by the purchaser, the measure of damages for a breach <of the warranty is the difference between the market value of the goods contracted for and of the goods delivered. In an .action for the price of the goods, the purchaser ma.y interpose this difference as a defense pro tanto. If an affidavit of defense 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 to be measured. All the elements of a defense should appear with reasonable •certainty in the affidavit, and, if any fact essential to complete .the defense is omitted, the affidavit is insufficient: ” Ogden v. Beatty, 137 Pa. 197. The defendant retained the goods and used them. He states nothing whatever as to the difference ■between the contract price and market value of the goods at the time they were delivered. He simply names the probable amount expended for labor and material in making the cloth into clothing, but has not stated a single fact that would make those matters proper items of damage on a breach of warranty: Ogden v. Beatty, supra. Under the authority of this case, if we consider there was a warranty in the case under consideration, the court below was clearly right in refusing to •open the judgment to let the -defendant into a defense. Judgment affirmed.