Eshbach & Eshbach v. Hoffmaster (No. 2).

contract between them, amounted to $4,090.77, against which there were certain credits, to the amount of $1,349.25, and that the balance due the plaintiffs arising out of this sale was $2,741.52. He, however, further avers that he has a set-off of $2,500.00, arising out of another transaction, and that the balance due by him at this time to the plaintiffs is $172.77. The facts out of which the set-off arise are fully set forth in the case of H. H. Eshbach and C. H. Eshbach, late co-partners trading as Eshbach & Eshbach, v. G. O. Hoffmaster, May Term, 1920, No. 23. [See preceding case.] Of course, the set-off cannot be used twice by the defendant; but judgment can now be entered in this case for the amount admitted to be due, with leave for the plaintiffs to proceed to collect the balance of their claim, and if the set-off is allowed in the above-recited case, then a verdict and judgment will be taken and entered for the amount found to be due, regardless of the set-off. In this way the rights of all parties are bound to be preserved.

The rule for judgment for want of a sufficient affidavit of defense is made absolute to the amount of $172.77, with interest from October 10, 1919, amounting to $180.37, and judgment is now entered for that amount. Leave is given to the plaintiffs to proceed for the balance of their claim.

Rule made absolute and judgment for plaintiffs for $180.37.

Court of Common Pleas of Lancaster County

Eshbach & Eshbach v. Kirchner.

Written contract-Inducement of by oral promise.

In a suit upon a written contract, one party thereto may defend on the ground that he was induced to sign it by a parol contemporaneous agreement or promise which the other party repudiates. In such case it need not be averred that the inducing promise was omitted from the writing by fraud, accident or mistake.

Rule for judgment for want of a sufficient affidavit of defense. May Term, 1920, No. 23.

F. Lyman Windolph, for rule.

Harnish & Harnish, contra.

July 3, 1920. Opinion by LANDIS, P. J.

The plaintiffs in this case allege in their statement that they entered into a written agreement with one, G. O. Hoffmaster, according to the terms of which they sold to the said Hoffmaster certain articles of personal property, particularly enumerated in the contract, for the sum of $4,000; that $500 was to be paid upon the execution of the agreement, $2,000 on November 15, 1919, and the balance, $1,500, on April 1, 1920; that the defendant became surety for the purchase price of the property enumerated in the agreement between the plaintiffs and Hoffmaster; that the articles were delivered; that Hoffmaster paid $500 on September 20, 1919, $2,000 on November 15, 1919, but has not paid

Eshbach & Eshbach v. Kirchner.

the balance of $1,500, which they allege is still due and owing upon the contract.

Suit was brought by the plaintiffs against Hoffmaster to recover this balance, and he filed an affidavit of defense, in which he alleged that there was a contemporaneous oral agreement between him and the plaintiffs, whereby it was agreed that the plaintiffs would discontinue the automobile garage and machinery business in Millersville and vicinity; that this agreement was the inducing cause for his signing the written agreement; and that the plaintiffs have refused to discontinue said business in Millersville and vicinity. Under this state of facts, we have discharged a rule for judgment for the plaintiffs in that case; and, as Kirchner is admittedly surety for Hoffmaster, the same defense is effective in the present action. It is unnecessary to again recite the

authorities. We refer to the case of H. H. Eshbach and C. H. Eshbach, late co-partners trading as Eshbach & Eshbach, v. G. O. Hoffmaster, May Term, 1920, No. 21, for a full exposition of our views upon this subject. [See ante, page 311.]

At this time, we think the rule for judgment for want of a sufficient affidavit of defense should be discharged.

Rule discharged.

Court of Common Pleas of Lancaster County

King v. Adams.

Contract of sale-Delay in shipment-Re-purchase in open marketLiability of vendor.

In an action to recover the additional cost of purchasing in the open market thirty tons of white hominy feed ordered by the plaintiff from the defendant which the latter failed to ship, an affidavit of defense is sufficient which avers that the hominy feed was a by-product of corn-flour the making of which the Food Administration of the United States Government had prohibited and therefore the mill from which the defendant had ordered the hominy was unable to furnish it, and the contract provided that the defendant would not be responsible for delays. Clifton Forge Milling & Feed Co. v. Eby, distinguished.

Rule for judgment for want of a sufficient affidavit of defense. April Term, 1919, No. 69.

Geo. Ross Eshleman, for rule.

B. F. Davis, contra.

September 25, 1920. Opinion by LANDIS, P. J.

On November 26, 1918, the plaintiff, who resides at Lawrenceville, New York, asked of the defendant his price for thirty tons of choice white hominy feed, either in bulk or sacked. The defendant accepted the order at the price of $54.00 per ton in bulk and $57.50 per ton in sacks. The bill furnished by the defendant states that the feed is to be shipped "prompt". It also contains the following. "We cannot guarantee time of delivery and are not responsible for delays. This

King v. Adams.

sale is subject to railroad embargoes and car shortage." The defendant failed to ship the hominy feed in ten or fifteen days, which is said in the trade to mean prompt shipment, and thereupon the plaintiff, on January 2, 1919, went into the open market and purchased thirty tons of white hominy sacked at $68.00 per ton. He, therefore, claims that he was obliged to pay out $315.00 over and above his contract price, and that the defendant, by reason of the breach of his contract, caused him to lose that amount, with interest from January 6, 1919.

The defendant has filed an affidavit of defense. In it he asserts that the Food Administration of the United States Government prohibited the making of corn flour, of which the goods sold was a byproduct, and the mill from which the defendant had ordered the goods was by reason thereof unable to furnish the hominy. He alleges that, as his contract provided that he could not guarantee the time of delivery, and would not be responsible for delays, the plaintiff cannot hold him liable for his loss, if any was occasioned. He also avers that he believes the price of $68.00, at which the plaintiff purchased the hominy, was excessive.

The plaintiff, in moving for judgment for want of a sufficient affidavit of defense, relies on the case of Clifton Forge Milling & Feed Co. v. Eby, 37 LANC. LAW REVIEW 121. That case differs materially from the present action. There the defendant agreed to deliver bran within sixty days, and he protected himself for delay in shipment by a provision that the acceptance of the order was subject to delay on account of car shortage or embargoes or other causes beyond his control. He, however, cancelled the contract, and then notified the plaintiff that he was willing to fill the order at market prices. It was evident that he was endeavoring to escape from his contract, not because of car shortage, embargoes or other causes beyond his control, but for the reason that he wanted the higher price for the goods. If he could deliver them at the market price, he could certainly deliver at the contract price, and his defense on this point was not genuine. The court, therefore, entered judgment, but held that "the defendant was protected by his contract from liability for delay in shipment, but was not justified in cancelling the contract.'

Were the provisions of the present contract sufficient to protect the defendant, if in good faith he did not deliver the hominy, because the delays were beyond his control? It is not alleged that they were caused by embargoes or car shortage. If, however, the United States Government held up his supply, that would be a defense, provided such a condition continued to exist up to the time the suit was brought. questions, it seems to me, should be determined by a jury.

These

The allegation that the amount claimed is excessive because the plaintiff might have purchased the hominy at $61.00 is of no avail. First, it is only based on belief, and second, the plaintiff was not in a position to buy other goods without risk, pending the settlement of this controversy.

We are of the opinion that the rule should be discharged.
Rule discharged.

ERRATA. The fourth word of the thirteenth line of the Opinion of the court in Greiner's Estate, page 305, should be "exceptant" and not "exception "; in the same case, the sixth word of the fourteenth line should be "obligations" instead of "obligation".

Court of Common Pleas of Lancaster County

Miedl v. Miedl.

Statement-Sufficiency of-Residence of parties-Relationship of parties of same name-Tort and contract.

A defendant cannot question the sufficiency of the plaintiff's statement by raising a point of law under Section 20 of the Practice Act of May 14, 1915, P. L. 483, on the ground that the statement does not show the residence of the parties and their relationship, their names being the same. If the plaintiff is an alien enemy or the husband of the defendant, these are matters of defense to be first alleged in the affidavit of defense.

Where a plaintiff alleges in his statement in assumpsit that the defendant took and carried away a stated sum of money and refuses to return the same, the cause of action is sufficiently set forth. The law implies the promise to return the money, and the plaintiff need not state in so many words that his claim is based on a contract.

Point of law raised by affidavit. June Term, 1920, No. 36.

H. Edgar Sherts, for plaintiff.

Oliver S. Schaeffer, for defendant.

September 20, 1920. Opinion by HASSLER, J.

The affidavit of defense filed in this case raises a question of law without answering the averments of the facts contained in plaintiff's statement, and is authorized by Section 20 of the Act of May 14, 1915, P. L. 483. In his statement the plaintiff sets forth as his cause of action that in May or June, 1919, the defendant took from a pocketbook in his house the sum of $1700.00, and left the City of Lancaster, Pa., taking the said money with her, and that she had refused to return the same though repeatedly requested to do so. The defendant in her affidavit contends that the statement is insufficient, because it does not set forth the residence of the plaintiff and defendant, their relationship, and whether the claim is based on a contract.

We are not convinced that the statement is not sufficient for any of these reasons. The residence of the parties is not material to entitle the plaintiff to recover. If the plaintiff is an alien enemy it is a matter of defense, which should be stated in the affidavit of defense. No presumption arises that he is an alien enemy. A minor cannot maintain an action in the Court of Common Pleas, but it is not required that a plaintiff shall state that he is of legal age in his statement. The same is true of the relationship of the parties. If their relation is such as will prevent the plaintiff from recovering, it is a matter of defense, and VOL. XXXVII, No. 58

Miedl v. Miedl.

the plaintiff need not aver it, but the defendant must allege it in her affidavit of defense if she desires to avail herself of it as a defense.

The facts upon which plaintiff relies to recover are clearly set forth. He alleges that she took and carried away $1700.00 of his money, which she refuses and neglects to return. Under such circumstances the plaintiff can recover by action in trespass, or he may waive the tort and bring an action in assumpsit, as the law implies a promise on the part of the defendant to return money so taken, to the plaintiff. The cause of action is, therefore, sufficiently set forth. It is unnecessay for the plaintiff to state in so many words that his claim is based upon a contract, as is contended by the defendant.

All the questions raised by the defendant are questions of fact, and must be raised by her, if at all, in an affidavit of defense. We, therefore, discharge the rule, and direct the defendant to file an affidavit of defense within fifteen days of the date of the filing of this opinion.

Court of Common Pleas of Lancaster County

Pearce v. Steffy.

Sale-Warranty-Return of goods-Retention of goods-Loss by inferior quality-Time for trial.

Where personal property is sold with a warranty or guarantee, but is not of the quality promised, the purchaser may either return it or retain it and defend to the extent of his loss, and reduce the price to the market value at the time and place of delivery; but if he elects to return it, he must return it immediately on ascertaining the defects, although the time allowed him in the contract to ascertain the quality had not expired.

Rule to stay execution and open judgment. April Term, 1920, No. 24, Ex. Doc.

B. F. Davis, for rule.

Cleon Berntheizel and Chas. W. Eaby, contra.

September 25, 1920.

Opinion by LANDIS, P. J.

On April 9, 1920, the plaintiff estered in this court a judgment by confession for $200.00, to January Term, 1920, No. 653. The said judgment was dated February 12, 1920, and was payable one month after date. On the same day upon which the judgment was entered, an execution was issued upon it and the sheriff levied upon certain personal property belonging to the defendant. On April 12, 1920, the defendant presented his petition to the court, setting forth that the judgment was part of the consideration for two horses which he purchased from the plaintiff; that the purchase price was $275.00, and that he paid $75.00 in cash on account; that when the sale was made, the plaintiff warranted the horses to be sound, to be seven years of age, and to be