Wilmot & Hobbs Manufacturing Co. v. Pennsylvania Bolt & Nut Co.

21 Pa. Super. 490, 1902 Pa. Super. LEXIS 390

• Court: Superior Court of Pennsylvania
• Decided: November 19, 1902
• Docket: Appeal, No. 106
• Status: Published

Opinion

Per Curiam,

Defendant filed a demurrer to the plaintiff’s statement which, after argument, was dismissed July 12, 1901, with leave to the defendant to file an affidavit of defense within fifteen days. No affidavit of defense having been filed within the time prescribed, judgment was entered for the plaintiff and against the defendant. A motion to open the judgment was filed July 30, which was granted and answered by the plaintiff September 16, 1901. December 16, 1901, a motion was made for leave to'file an affidavit of defense which was subsequently filed of record. The court considered the question of the sufficienc'y of the affidavit of defense as if it had been filed in time and, because it was regarded as insufficient, the rule to open the judgment was discharged. The parties here treated the question as if it involved only the sufficiency of the affidavit of defense. Was it sufficient?

The contract between the plaintiff and the defendant was practically in writing, contained in the letters of the plaintiff and defendant respectively, the acceptance of the defendant being as follows: “We have your letter of the 25 th instant, accepting our proposition of 18.50 per gross ton delivered Lebanon for your steel scrap for one year from July 1, 1898, to June 80, 1899.” There is no allegation in the affidavit of defense that the difference between the written contract, as contained in the offer of the plaintiff and accepted by the defendant and the verbal contract alleged in the affidavit of defense was made subsequently to the written contract. There is no averment in the affidavit of defense that the plaintiff had steel scrap which could be delivered. The offer was to sell “our scrap;” the acceptance was “for your steel scrap for one year.” The averment in the affidavit is “ that, by reason of the said plaintiff’s refusal to keep its contract with the said defendant, the said defendant was obliged to purchase steel scrap from other parties and to pay therefor a price amounting to one dollar and more per ton more than the plaintiff had agreed to furnish said steel scrap to the said defendant.” From what parties ? How much was purchased and at what prices ? The averments in respect to these essential facts are vague and indefinite. The opinion of the court below fully covers the question involved, to which nothing can be profitably added. See as to exactness in an affidavit of defense, where a set-off is alleged, Fleisher v. Blackburn, 15 Pa. Superior Ct. 289. The decree of the court below, discharging the rule to open the judgment, is, therefore, affirmed.