Martin, Appellant v. Hoshauer.

stantially no contradiction of the evidence on this subject and the court might properly have submitted the case to the jury on that evidence alone, but doubtless in view of the obvious mistakes of description in the deeds, the court received evidence aliunde and instructed the jury to find what was intended to be conveyed. The verdict was for the defendant.

In 1906 John Zudrell owned a lot at the northwest corner of Chestnut street and Washington avenue in the Borough of Ephrata. After building a curb about it, he divided it into two parts by cutting a mark in the curb and by driving stakes through the lot on a line parallel with Washington avenue, giving the western part a front of about 112 feet on Chestnut street and the eastern or Washington avenue part a front of from 70 to 73 feet on Chestnut street. The disputed strip is the easternmost 13 feet 11 inches of the 112 feet front, i. e., whether that front should be about 112 or about 98 feet. For convenience, we shall refer to the western lot as "W" and the eastern lot as "E". Zudrell sold these two lots at public auction in the fall of 1906, making and delivering deeds therefor as follows: (1) For lot "W” with 112 feet front on March 29, 1907, to one Bolster; this deed was not recorded until 1911. Bolster took possession of 112 feet, i. e. to the mark on the curb and the stakes. (2) For lot "E" on April 1, 1907, to Schload et al.; this deed was recorded three days later. The Schloads took possession of 70 to 73 feet as marked on the land by Zudress, i. e. from the mark on the curb and the stakes to Washington avenue, through the deed described a frontage of 112 feet 9 inches on Chestnut street. Lot "E" was again conveyed March 16, 1912, by the Schloads to appellant Martin, but was described as containing 87 feet on Chestnut street (instead of about 70 to 73 feet as Zudrell had staked it, or about 112 feet as described in the deed to the Schloads). The description in the deed was as follows:

"Beginning at an iron pin at the intersection of Washington avenue and Chestnut street; Thence along in the middle of said Chestnut street, North sixteen and one quarter degrees West, Eighty seven feet more or less to a stake in the middle of said Street; Thence by lot of F. T. Bolster, North sixty three degrees East, One hundred and twenty two feet more or less, to a stake in line of land John M. Good; Thence by the same South Twenty-eight degrees East, Sixty nine feet to a point in the middle of said Washington avenue; thence along in the middle of said Washington avenue, South sixty-three degrees West, One hundred and thirty five feet to the place of Beginning. Containing thirty two and four hundredths perches of land, more or less."

The second boundary, described as 122 feet long, is parallel with the last or Washington avenue boundary; if the first or Chestnut street boundary is 87 feet long, the third or opposite boundary given as 69 feet will not close; a mistake is apparent on the face of the deed; the area stated in the deed as 32.04 perches is not the area of the lot with a front of 87 feet.

After appellant purchased, he entered upon lot "E" as theretofore occupied by the Schloads. The deed to appellant was recorded March

Martin, Appellant v. Hoshauer.

19, 1912. He built a hedge along the western boundary, fencing off a frontage of about 70 to 73 feet.

Lot "W" was conveyed by Bolster to appellee Hoshauer on October 5, 1916, and Hoshauer took possession of all that Bolster had possessed, 112 feet. The deed to Hoshauer was not recorded until December 19, 1917. For four years after appellant purchased lot "“E”, he rented lot "W" from Bolster. Bolster also testified, though appellant denied the fact, that appellant tried to purchase from him immediately adjoining lot "E", a part of lot "W"; appellee also testified (and appellant denied it) that about a week after he purchased lot "W" appellant asked him to sell to appellant a part of lot "W" immediately adjoining the hedge fence, and that he declined.

Of the three complaints requiring notice, the first arises on a number of assignments, complaining, in substance, that the court declined to direct a verdict for appellant. This is based on a contention that the delay in recording the deeds, Zudrell to Bolster and Bolster to Hoshauer, rendered them void and inadmissible against appellant. The complaint is without merit; the deeds were properly received in evidence; the defense was possession under a deed and notice thereof to appellant when he purchased; neither the Act of May 19, 1893, P. L. 108, nor its application to the facts stated in Smith v. Young, 259 Pa. 367, would support their rejection, for in that case the court said: ". . . It is expressly set forth in the case stated that at the time when plaintiff agreed to purchase, she had no actual knowledge of any prior agreement for the sale of the property. . . . See also Keichline v. Keichline, 54 Pa. 75; Hymen v. Gatta, 33 Pa. Super. Ct. 438; Tate v. Clement, 176 Pa. 550, and Greenwich Coal & Coke Co. v. Learn, 234 Pa. 180, at 190, and cases there cited.

The second complaint arises under a number of assignments grouped by appellant, complaining of the admission of testimony by Zudrell, by the three Schloads and by Bolster as to the original sales by Zudrell, his division of the lot into two of the dimensions already specified by marking and staking; and that the possession of all the subsequent owners was confined to the lots as so marked and staked on the ground; counsel for appellant states the objection to that evidence as being testimony "in favor of the deeds that were null and void as above set forth or against the deeds which they made themselves." We have already shown that the deeds were properly received; it was equally proper to receive the evidence that the Schloads were in possession of lot "E" with only 70 to 73 feet front and that Bolster was in possession of the remaining 112 feet immediately west of the lot occupied by the Schloads and that appellant observed, or under the circumstances should have observed, that possession before purchasing. Such possession was sufficient to put him on inquiry, as is shown by the authorities already cited and by Jamison v. Dimock, 95 Pa. 52, at pp. 55, 56; Hottenstein v. Lerch, 104 Pa. 454, at 460, and White v. Patterson, 139 Pa. 429, at 438.

The third complaint relates to receiving evidence aliunde as to what land was intended to be conveyed by the deeds. As the ample evidence of possession of lot "W", 112 feet front, by Bolster, and of lot "E"

Martin, Appellant v. Hoshauer.

by the Schloads, 70 to 73 feet front, as the time of appellant's purchase was substantially uncontradicted, a verdict for plaintiff, if rendered, could not have been sustained, so that appellant was not prejudiced by the submission to the jury to find whether or not the deeds, in view of the mistakes in the descriptions, were intended to convey lot "E" with 70 to 73 feet front, or with the greater frontage. The authorities support hearing such evidence: Morse v. Rollins, 121 Pa. 537; Carroll v. Miner, 1 Pa. Super. Ct. 439; Trustees of Kingston v. Lehigh Valley Coal Co., 241 Pa. 469 at 480. (We have referred to the width of lot "T" in this opinion as having from 70 to 73 feet front, instead of a definite frontage, because it was referred to by both frontages in the trial, though in the history of the case appellant states it as 73 feet and the court in charging the jury states that "the land in dispute in this case is a strip of 13 feet 11 inches . . .").

The judgment is affirmed.

Court of Common Pleas of Lancaster County

The Union Trust Co. v. Isaac Martin.

Affidavits of defense-General denial—Act of May 14, 1915, P. L. 483, Section 8.

Under the Practice Act of May 14, 1915, P. L. 483, it is not sufficient for the defendant in his affidavit of defense to deny generally the allegations of the statement of claim.

Where a statement sets forth that the plaintiff seeks to recover on a promissory note made by the defendant payable to himself and endorsed by him, giving its date and the time when due, and setting forth that prior to that time it was purchased by the plaintiff from a third party named and presented to the bank where it was made payable but not paid, and that a stated amount was due, an affidavit of defense filed thereto is insufficient which simply states that "the defendant denies the facts set forth" in the plaintiff's statement, and denies that the amount stated is due.

Rule for judgment for want of a sufficient affidavit of defense.
John M. Groff, for rule.

Chas. G. Baker, contra.

April 17, 1920. Opinion by HASSLER, J.

According to its statement, the plaintiff seeks to recover in this case on a promissory note, made by the defendant, payable to himself and endorsed by him. It is dated June 21, 1918, and made payable on April 1, 1919. It is for the sum of fifteen hundred dollars ($1500.00). Prior to the date on which it became due it was purchased by the plaintiff from the Bottomfield Tire Company. It was duly presented at the Farmers National Bank of New Holland, where it was payable, and was not paid. The defendant, in his affidavit of defense, denies these allegations by simply stating that the defendant denies the facts set forth in Paragraph 3 of plaintiff's statement of claim, and the same as to Paragraph 4. We are asked to enter judgment because, it is contended, this affidavit of defense is not sufficient.

The Act of May 14, 1915, P. L. 483, Section 8, provides that," It

The Union Trust Co. v. Isaac Martin.

shall not be sufficient for the defendant in his affidavit of defense to deny generally the allegations of the statement of claim." In Fulton Farmers Association v. Bomberger, 34 L. L. R. 325, we decided that such a denial was not sufficient. In 262 Pa. 43, that case was affirmed. Justice Simpson in his opinion says: "Nor is defendant any happier in his contention that his bald denial of the averments of the several paragraphs of the statement of claim was sufficient. We agree with the Court below that these averments are wholly insufficient because of Sec. 8 of the Act of 14 May, 1915, P. L. 483, which provides that 'it shall not be sufficient for the defendant in his affidavit of defense to deny generally the allegations of the statement of claim.'

In our opinion the affidavit of defense is insufficient to prevent judgment and we make absolute the rule to show cause why judgment should not be entered, and enter judgment for the plaintiff for the sum of $1596.87.

Rule made absolute.

Court of Common Pleas of Lancaster County

Ralph G. Kirk and Eugene P. Ochs, trading as The Harrisburg Auto and Repair Co. v. The Economy Accessory Stores Co.

Sales-Unfulfilled promises of vendor-Affidavit of defense-Set-off.

In an action for the price of certain drums of lubricant sold and delivered to the defendant, an affidavit of defense is sufficient which avers that the plaintiffs failed to establish a market by making certain sales, and to print and send out certain circulars as promised by their agent at the time of the sale to the defendant, and further avers that the pumps attached to each drum and guaranteed to pump the grease direct from the barrels to the place where it was applied failed to do so, and the defendant offered to return the unsold goods; but the affidavit is insufficient as against admitted liability, wherein it avers as a set-off that the defendant "forced to make adjustments with some eighteen of their customers, and that said customers now refuse to have dealings with the defendant, whereby they have suffered damage to the amount of one thousand dollars by loss of profits."

was

A set-off must be stated in an affidavit of defense with the same detail and particularity as are required in a statement.

Rule for judgment for want of a sufficient affidavit of defense.
John E. Malone and A. Ross Walter, for rule.

L. R. Geisenberger, contra.

April 17, 1920. Opinion by LANDIS, P. J.

It is admitted that the defendant gave to C. E. Hoin, the agent of the plaintiffs, on August 7, 1919, a written order for fifty one-half barrels or drums of Crystalline Lubricant, 260 pounds per drum, at a total cost of $1,823.25, and that on August 20, 1919, a similar order was given for thirty one-half barrels or drums of the same lubricant, 260 pounds per drum, at a total cost of $1,093.95. These eighty onehalf barrels or drums were subsequently delivered by the plaintiffs to the defendant. On August 15, 1919, the defendant ordered one case of two dozen cans of Irvine's Varnish and Enamel Cleanser, at a total cost of $9.00, which was also delivered to the defendant. The total amount of the plaintiff's claim is, therefore, $2,917.20, with interest from September 1, 1919, and $9.00, with interest from October 1, 1919.

Ralph G. Kirk and Eugene P. Ochs, trading as The Harrisburg
Auto and Repair Co. v. The Economy Accessory Stores Co.

The defendant has filed an affidavit of defense, in which it avers that it was agreed, at the time of purchase, that the agent of the plaintiffs would sell the eighty one-half barrels of lubricant for the defendant to other dealers in Lancaster and York Counties, and thus establish a market for the lubricant, and that the plaintiffs would print a circular to be sent to every automobile owner in Lancaster and York Counties, describing the merits of the lubricant, giving the names of the dealers who purchased the lubricant from the defendant as distributor, and stating that the defendant was the sole agent for these counties. It is further averred that a special pump was to be furnished with each barrel, which pump was guaranteed to pump the grease direct from the barrels to where it was to be applied. The claim of the defendant is that the agent of the plaintiffs sold but twenty-eight barrels of the lubricant, of which eight were returned to the defendant, that no printed circulars were printed as agreed upon, and that the pump failed to properly do the work for which it was guaranteed; also, that the defendant offered to return to the plaintiffs all of the unsold goods in its possession, but that the plaintiffs refused to accept them.

So far as the twenty-four cans of Varnish and Enamel Cleanser are concerned, at the amount of $9.00, the delivery is admitted, and there does not seem to be any proper defense.

A further allegation is made that the defendant was forced to make adjustments with eighteen of its customers, and that the customers now refuse to have dealings with it, and it is asserted that thereby the defendant suffered a loss of $1,000.00. We do not think that this item of set-off is sufficiently explicit. The value of the lubricant which the defendant admits it retained and sold was $858.00, and the twenty-four cans of Varnish and Enamel Cleanser, which it also retained, was of the value of $9.00.

It has been decided by this Court, in Dixie Mfg. Co. v. Philip Lebzelter & Son Co., 36 LANC. LAW REVIEW 133, that a set-off must be stated in an affidavit of defense with the same detail and particularity as are required in a statement." See, also, Breitweiser Lumber Co. v. Crick, 55 Sup. 72; Ryon v. Starr, 214 Pa. 310. It is clear that the claim of set-off as here made does not measure up to this rule. Therefore, so far as these two items are concerned, we are of the opinion that judgment should be entered in favor of the plaintiffs.

The next question arising is, whether or not the affidavit of defense is sufficient as to the remaining sixty one-half barrels. If the plaintiffs' agent, at the time of the sale, promised to do what is set forth in the affidavit of defense and did not do it, and the defendant then offered to return the unsold goods in its possession, we are of the opinion that it can make a defense to that extent. A question of fact is, in our judgment, thereby raised, which should be determined by a jury.

We have, therefore, concluded that the rule should be made absolute as to the items above mentioned, and that judgment should be entered in favor of the plaintiffs and against the defendant for the sum of $858.00, with interest from September 1, 1919, and the sum of $9.00, with interest from October 1, 1919, aggregating $899.89, and that the plaintiffs shall have leave to proceed for the balance of their claim.