Edison Electric Light Co. v. McCorkell

28 A. 1083, 161 Pa. 227, 1894 Pa. LEXIS 673

Opinion

Opinion by

Mr. Justice Green,

The claim of the plaintiff is for designated quantities of electricity at a fixed price per lamp-hour, and the aggregate of the bill is $169.20, ascertained by the number of lamp-hours at the price stated. The defendant alleges in his affidavit of defence ’that he will prove on the trial “that the measurement of current used is incorrect, and that the meter placed for the measurement of current and to regulate lamp-hour consumption was, during the running of the period of time sued for, out of order and repair, and did 'not register correctly.” While it is true the defendant does not state what the correct measurement of the electricity consumed was, or would have been, he proceeds to state a reason why it is impossible for him to make such a statement. He says the meter for the measurement of lamp-hours is the property of the plaintiff and under their sole control, that it was removed from the premises by the plaintiff, and he had no opportunity to test by a new and correct meter. He avers that because of this reason he cannot tell in what sum he is indebted to the plaintiff for electricity actualty consumed, and concludes by saying he is perfectly willing to pay what is justly due upon a proper test of the current by a proper instrument.

It seems to us that this affidavit discloses a reasonable excuse for not expressing the amount he does owe. The meter being removed from the premises the defendant would have no opportunity of examining it with a view of determining the correctness of the quantity registered, or of comparing it with the quantity which he claims it ought to have registered. His allegations of excessive registry are sufficiently positive to constitute the assertion of a material fact in hostility with the claim, and, that being so, he would be entitled to have an opportunity to prove the truth of the facts he asserts before the jury-

Judgment reversed and procedendo awarded.