Parker v. Shoemaker

Opinion by Beaver, J., Plaintiff claimed for the hauling, cleaning and storage of certain personal property. Defendant admitted the claim, but alleged that a portion of the property taken out of his possession had not been returned and that the value of the property which the plaintiff failed to return was greater than his bill and that he, therefore, had a defense for an amount greater than the plaintiff’s claim. The affidavit raises a simple question of fact. It is clearly raised and it seems to us that the affidavit is sufficient to raise a question for a jury and that the rule for judgment for want of a sufficient affidavit of defense should have been discharged. [102] The appellee claims that the affidavit alleges too much. That it was only necessary to' say that the plaintiff did not deliver the goods to No. 4226 Pine St., Philadelphia. This is alleged but it is added “nor to any other place.” We cannot see that the addition makes the affidavit either vague or uncertain. It is claimed by the plaintiff that the claim of the appellant is based upon a tort and is, therefore, not the subject of set-off. This is perhaps strictly true, but there is no claim of set-off. The claim is for a breach of the contract to redeliver the goods, and this we think is sufficient to prevent a recovery, when the amount is greater than the claim of the plaintiff. As was said in Leech v. Baldwin, 5 Watts 446, “The defendant cannot give evidence of a breach of contract in a different transaction on which unliquidated damages might be due to him; but.he may give evidence of nonfeasance or misfeasance by the plaintiff in the matter which is the cause of the action trying, not as a setoff, strictly, but for the purpose of defeating in whole or in part the plaintiff’s cause of action. Gogel v. Jacoby, 5 S. & R. 117.” The defendant makes no claim for a balance in his favor, but simply claims that he is not indebted to the plaintiff. If such a claim were made at the trial, it is doubtless true that, under the authority of Deihm v. Snell, 119 Pa. 316, no judgment would probably be entered upon a certificate in his favor rendered by the jury; but this is not the claim and the facts contained in the affidavit, if made good at the trial, would only extinguish the amount claimed by the plaintiff. The affidavit, therefore, seems to us to be good and the rule for judgment for want of a sufficient affidavit of defense should have been discharged. Judgment reversed and a procedendo awarded.