Hayes v. Kingston

16 A. 745, 1 Monag. 151, 1889 Pa. LEXIS 1293

• Court: Supreme Court of Pennsylvania
• Decided: January 28, 1889
• Docket: No. 8
• Status: Published

Opinion

Williams, J.,

The plaintiff’s claim in this action was upon two promissory notes, payable to the order of Kingston, for one hundred dollars each. The court below entered judgment in favor of the plaintiff for want of a sufficient affidavit of defense, and this is the action complained of.

Treating the affidavit and the supplemental affidavit as together constituting the defendants’ statement of their defence, we find it to consist of the following particulars :

1st. An allegation that the defendants bought from Kingston a car load of roofing paper for eight hundred dollars, all of which is paid except these two notes.

2. That such sale was made with an express agreement that the paper “ should be of the quality of the sample sent and upon which the order was originally based.”

3. That the paper was not of such quality and that this could not be discovered until the paper was subjected to the process by which it was saturated with tar.

4. That the quality ordered, and which it was agreed this car load should be, would absorb, in the process of ' saturation, three thousand pounds of tar for every two thousand pounds of paper.

5. That this paper was so hard and damp that it would not absorb more than about two-thirds of what was necessary to make it correspond with the sample, with the express agreement of Kingston and with the requirements of the trade.

6. That the loss by reason of the defective preparation of the paper was equal to thirty per cent, of its cost, or more than the plaintiff’s claim.

The facts, thus set up by the defendants, constitute a good defence. If proved, the legal plaintiff ought not to recover, and, for the purposes of this motion, we are to assume the ability of the defendants below to prove the facts as they have alleged them to be. It was error, therefore, to enter the judgment complained of. The use plaintiff is entitled to stand on no better ground than the payees. He is not averred to be an endorser or purchaser in the usual course of business of the notes sued on; while the defendants distinctly aver, in their affidavit, that he acquired his interest in the notes after their maturity and with full notice.

The judgment is reversed, the record remitted and a procedendo awarded. W. S. W.