Jones v. Carrigan

Opinion by Orlady, J., The plaintiff brought suit to recover a balance alleged to he due on three shipments of salt, as specified in an exhibit attached to his statement. On a rule for judgment for want of a sufficient affidavit of defense the court entered a judgment for the amount claimed to be due. In the original and supplemental affidavit of defense, which are to be taken together, there was a distinct and specific denial of the delivery of the ninety tons of salt, and an admission of delivery and acceptance of eighty-five tons only. The other averment may be considered as not conclusive, but as to this one we have the fact of shortage of weight so specificially averred as to not warrant the court in entering a summary judgment for the whole claim, and to this extent the judgment should be reversed. A later rule was entered for judgment for the amount as to which the affidavit is insufficient, and this, from the record, does not appear to have been disposed of. As this appeal is presented we consider only the general rule, and on authority of Armstrong v. Descalzi, 48 Pa. Superior Ct. 171, and authorities therein cited; and Noble v. Erwin, 50 Pa. Superior Ct. 72. The judgment is reversed, with a procedendo.