Jillson v. Restein

Opinion by W. D. Portee, J., In this case judgment was entered against the appellant for want of a sufficient affidavit of defense. The validity of the debt claimed by the plaintiff was not denied, but the defense is a set-off arising out of a separate transaction. The question then is whether the affidavit avers with reasonable precision and distinctness facts which would establish a valid claim against the appellee. The alleged claim which defendant attempts to set-off is founded upon the failure of the plaintiff to comply with a certain contract for the sale and delivery of goods to the defendant. The affidavit, in substance, sets forth that on August 2, 1897, the defendant company, who were merchants in Philadelphia, sent to the plaintiff, whose place of business was at Pawtucket, R. I., a written order for goods, a copy of which is attached to the affidavit. Plaintiff acknowledged the receipt of the said order and agreed to furnish the goods ordered in kind and of the quality and on the conditions named in said order, and on or about August 11,1897, shipped certain goods for the filling of said order, and on August 13, 1897, the same were delivered to and opened by defendant. “ Upon inspecting the goods defendant found that all of said goods were of an inferior quality, and not in accordance with the goods ordered and mentioned in said order, except 815 feet and 6 inches of rawhide lacing, in sides, which defendant retained and paid for. The balance of said goods were shipped back to plaintiff, with a request that plaintiff send the kind and quality of goods specified in said order. Plaintiff answered and stated that said goods would be sent according to order at the earliest possible moment. Plaintiff never sent the goods as requested, and in accordance with its promise, and the defendant, on November 26,1897, was compelled to go out in the [641] market and purchase said goods at an advance in price.” Then follows a list of the goods so alleged to have been purchased and the prices paid for them, and the assertion that in the aggregate the prices so paid exceeded by $86.46 what the defendant would have paid for the goods had plaintiff complied with its alleged contract to deliver the same. The order attached to the affidavit directed the plaintiff to “ ship via freight as quickly as possible 2 doz. sides rawhide lace, large sides, from 20 to 25 feet each. Three doz. sides rawhide lace from 16 to 20 feet each; ” and a quantity of cut lace rawhide of designated classification. It thus appears that the order was for a distinct number of sides of rawhide lacing. The affidavit admits that defendant received, retained and paid for 815 feet and six inches of rawhide lacing, in sides, but it does not state the number of sides which it took to make up that quantity, and furnishes no means by which the number of sides so accepted can be determined. If the sizes of these sides of leather were not as large as the defendant designated in its order, it need not have received them, but having retained and paid for them it cannot now be heard to allege that they did not contain as much leather as sides of the class mentioned in the order: Markley v. Stevens, 89 Pa. 279. The defendant must be held to have accepted these sides to the number actually received by it as in discharge of its contract of purchase; it does not assert in what number they were short of the contract, and as to that item of the claim of set-off the affidavit is therefore defective. As to the several items of cut lace rawhide, the order failed to designate with precision the price which was to be paid. The only mention of price contained in the order was in two distinct sentences, viz.: “ The price to be 14|- cents per foot on side lace, 70 and 5 per cent on cut lace; ” “ 3. If prices are not specified they are understood to be no higher than last bill or quotation.” Neither the order nor the affidavit contained any suggestion as to what the last quotation had been. If the words and figures in the first sentence above quoted, relating to cut lace leather, were intended to convey the idea that the goods were to be sold at seventy and five per cent off some list or card price, upon complying with certain conditions, those conditions ought to have been embodied in the order, or distinctly set forth in the affidavit of defense, as well as the list [642] price from which the deduction was to be made. The allegation, therefore, that the defendant was compelled to pay. more in the market than it would have been required to pay under the contract, fails to meet the requirements of such a case, in that neither the affidavit nor the order for the goods made clear what price had been agreed upon between the parties. The affidavit is defective in that while the order contemplates a delivery of the goods to a carrier at Pawtucket, and, therefore, a change of ownership and possession at that point, the defendant in attempting to measure his loss because of the plaintiff’s alleged failure to perform the contract, does not state in what market he bought the .goods, but, if anything can be fairly inferred from the affidavit, he supplied himself in Philadelphia with goods to take the place of those which the plaintiff ought to have delivered in Pawtucket. There is no suggestion of what-the cost of transportation from Pawtucket to Philadelphia was, nor is there anything said from which it can be assumed that the market price in one place was any evidence of the market value in the other. It appears upon the face of this affidavit that this entire negotiation was in writing, the plaintiff’s acceptance of the order, and the subsequent alleged agreement to send other goods to supply the place of those returned, as well as the order of the defendant. Yet the defendant does not attach copies of these letters, written by the plaintiff, but ‘contents himself with giving in his affidavit the alleged substance of those letters. This is not the proper way to state a contract, the entire evidence of which is in writing. There was no error in the entry of judgment in default of a sufficient affidavit of defense. The judgment is affirmed.