Everett Consolidated Shingle Co. v. McLaughlin

Opinion by Beaver, J., Judgment was entered in the court below for want of a sufficient affidavit of defense. The only assignment of error is that the order of the court entering judgment was erroneous. The defendants ordered from the plaintiff shingles of a certain kind. The statement sets forth the shipment of shingles of the kind ordered, as we understand it. At all events, the affidavit of defense distinctly alleges that the shingles received were not of the kind ordered nor of the kind charged in the statement, but were of an inferior quality, that the defendants notified the plaintiff and that it directed them to hold the shipment until the price could be adjusted and subsequently refused to send an inspector to make an inspection and adjustment. The [487] market value of the shingles is distinctly set forth in the affidavit, and judgment tendered for the amount of that value. We think the affidavit was sufficient to prevent judgment for more than the amount tendered. The shipment by the plaintiff, in response to the defendants’ written order, implied a warranty of the kind and quality of shingles shipped. There was no inspection on the part of the defendants, as they relied entirely upon the plaintiff to ship according to their order. The case is much like our case of Wilson v. Belles, 22 Pa. Superior Ct. 477. We cannot agree with the conclusion reached by the judge of the court below that “If the case proceeded to trial and the defendant gave oral testimony to support each allegation in the affidavit, it would not be sufficient to submit to the jury and it would be necessary to direct a judgment to be entered in favor of the plaintiff for the full amount.” We are of opinion that, if the allegations of the affidavit were supported by testimony of like specific character as the allegations contained- in the affidavit, a jury would be justified in rendering a verdict for no more than the alleged market value of the shingles,, as set forth in the affidavit. Here is a distinct allegation that the market value of the entire shipment was. so much. If that were clearly shown, there could surely be no recovery for more than that amount. The grounds, upon which the difference between the alleged market value and the price claimed in the statement rest, are set forth, that the shingles were not of the character ordered or charged and that they were distinctly inferior in quality. The affidavit is said to be insufficient in that it did not specify the number of shingles which were inferior. It would be practically impossible for the defendant to specify the exact number of shingles, without opening the bundles and examining each shingle separately, but the distinct allegation is made that they were all. of an inferior grade and that the mark upon the shingles indicated that; that they were “upright clears” instead of “extra clear red cedar shin [488] gles,” the allegation being that "upright clears” were a grade inferior to the kind and quality ordered and charged in the plaintiff’s statement. ■ We think this was sufficient and that the market value of the entire shipment being clearly indicated in the amount for which judgment was tendered, the affidavit was good as to the balance, and that it should have been so held. The plaintiff can, of course, take judgment for the amount tendered and proceed as to the balance before a jury. See Newton Rubber Works v. Kahn, 186 Pa. 306; Bacon v. Scott, 154 Pa. 250; Kaufman v. Cooper Iron Mining Co., 105 Pa. 537. In all of these cases there was an express warranty as to quality. In the present case there is an implied warranty, the defendants having ordered a specific quality of shingles and the shipment in response thereto implying a warranty that they were what was ordered. The defendants had practically as good right to rely upon this implied warranty as they would have had to rely upon an express warranty in regard to the character of the goods shipped. Judgment reversed and a procedendo awarded.