Pottash v. Vietor

118 A. 215, 274 Pa. 346, 1922 Pa. LEXIS 695

Opinion

Per Curiam,

We adopt the following opinion of the court below: “The rule to dissolve attachment must be made absolute. Plaintiffs cannot ask to have the attachment preserved unless they show a cause of action which, if proved, would sustain a verdict; the affidavit filed in this case does not meet this test. The contract with Westphal [the principal] was made July 16, 1918; it had been made verbally and was confirmed in writing. Deliveries were to be made of burlap from Calcutta, shipped in June or July, and were to be delivered on the Pacific Coast; defendant was surety on this contract. The affidavit avers that ‘early’ in December a consignment of burlap arrived at Seattle, and principal and surety refused to accept it. There is no' averment that the burlap came from Calcutta or that it was shipped in June or July. There was, therefore, no averment of performance of the contract by plaintiffs in these very important particulars. The affidavit is insufficient to sustain the attachment.”

It need be added only that, since we agree the case was properly disposed of by the court below on the pleadings, it makes no material difference, for present purposes, whether defendant was a surety or an original debtor.

The order appealed from is affirmed.