Now, to wit, December 15th, 1919, the motion for judgment for want of a sufficient affidavit of defense is overruled and refused.

SANDUSKY CEMENT CO. v. SHUTZ.

Practice Sec. 17 of Practice Act of May 14, 1915, P. L. 483 -Affidavit of Defense-Counterclaim-Damages.

Under Section 17 of the Practice Act of 1915, P. L. 483, the proper practice is for the plaintiff to move the court for judgment for such part of the claim as is not sufficiently denied.

The same duty of full disclosure of detailed and specific facts, for the information of the opposite party, rests upon the pleader in making a counter claim as is required of him in filing a statement.

An affidavit of defense which sets up as a defense or counterclaim a breach of warranty of goods sold and delivered, should set forth as fully as possible the specific language of the alleged warranty, in order that it may appear whether or not said language constitutes a warrantly as averred.

Prospective profits on unsecured future business are too remote and speculative to be recovered as damages.

An affidavit of defense, in which an alleged breach of warranty made by the plaintiff's agent is set up as a defense or counterclaim, without giving the name of the alleged agent or the words in which the alleged warranty was made, is insufficient to prevent judgment for the plaintiff.

Action in assumpsit in the Common Pleas of York County, Pa., by Sandusky Cement Company v. J. P. Shutz, No. 54 October Term, 1919. Sur motion for judgment for want of a sufficient affidavit of defense. Judgment entered for part of claim.

Keesey, for Plaintiff.

Hoober, for Defendant.

December 22, Wanner, P. J.—This is an action of assumpsit to recover the price of coal sold and delivered to defendant. The plaintiff having filed a reply to the defendant's affidavit of defense and counter claim, now moves the Court for judgment for that portion of its claim which is not sufficiently denied by the affidavit of defense, to wit: the sum of $5,105.19, with leave to proceed for the balance.

This is the proper procedure under Section 17 of the Practice Act of 1915, P. L. 483, which Act supersedes the provisions of the Acts of May 25, 1887, P. L. 271, and July

15, 1897, P. L. 276, relating to the taking of judgments for want of a sufficient affidavit of defense: Fulton Farmers' Assn. v. Bomberger, 262 Pa. 43-47; Federal Sales Co. v. Farrell, 264 Pa. 149.

In this case the face of plaintiff's claim is not disputed, but certain specific items and amounts are set-off against it in paragraphs 6 and 7 of the affidavit of defense, and there is also a general counterclaim for damages resulting from an alleged breach of warranty as to the quality of the coal sold to the defendant.

In support of this counterclaim it is alleged (1) that the plaintiff's authorized representative expressly warranted all the coal sold to the defendant, to be one lot of good steam coal, which was bought by defendant, on the strength of said warranty and was by him sold to his customers on a similar warranty.

(2) That it was not good steam coal as warranted to be, but was of inferior quality and not usable for the purposes for which it was warranted.

The defendant avers that said coal was "mainly" sold to the York Sanitary Milk Company, The Lafean Paper Company, and the Ford Roofing Company, all of York, Pennsylvania, and that by reason of its bad quality said parties have ceased to buy coal of the defendant, whereby he will lose prospective profits of expected business in the future. It is alleged that these profits would eventually amount to more than the balance due on plaintiff's claim.

It is contended that this general and indefinite counterclaim is insufficient in form and in substance to prevent judgment for the plaintiff. The general allegation in the counterclaim that the authorized representative of the plaintiff warranted the coal sold the defendant to be good steam coal is entirely too indefinite to conform to the statutory requirement that the averments of the counterclaim must in all respects be as specific as those of a statement are required to be.

The name of plaintiff's agent who is alleged to have warranted the quality of the coal sold the defendant, should have been given in the counterclaim for the information of plaintiff, so as to enable it to reply thereto, and to make its defense. Because of the failure to give the alleged agent's name in the counterclaim under pre

cisely similar circumstances, the affidavit of defense was held insufficient in W. E. Heyser L. Co. v. Whiting L. Co., 62 Pa. Super Ct. 76; Monowatt Electric Import Co. v. Dean, 19 Lack, 166.

The specific language of the alleged warranty of the quality of the coal, should also have been set forth as fully as possible, in order that it might appear whether or not said language constituted a warranty such as is averred by the defendant.

To merely allege that the agent warranted the quality of the coal, is but to state an inference, or a conclusion of law, which section 5 of the Practice Act of 1915, P. L. 483, expressly forbids.

The same duty of full disclosure of detailed and specific facts, for the information of the opposite party, rests upon the pleader in making a counterclaim as is required of him in filing a statement: O'Neil v. Burnett, 263 Pa. 216; Frick & Kindsay Co. v. Kent & Kervin, 265 Pa. 264.

Although the above cited authorities are fatal to defendant's counterclaim for any damage for breach of the alleged warranty of the coal, sold defendant, it may be added, that prospective profits on unsecured future business are too remote and speculative to be recovered as damages.

The general rule as laid down in the leading English, and Pennsylvania cases is, "That damages recoverable are such as may be fairly and reasonably considered as naturally arising from the breach according to the usual course of things, and under the circumstances contemplated by the parties at the time of entering into the contract. Under this rule damages may be recovered for loss of such profits as are the direct and immediate fruits of the contract itself established with reasonable certainty and following as a natural result of the breach, and such as the parties may have reasonably contemplated at the time the contract was made as a probable result of a subsequent breach, but damages for loss of uncertain, remote or speculative profits cannot be recovered": Spiese v. Mut. Trust Co. 258 Pa. 422-426; Raby v. Ward-Meehan Co., 261 Pa. 463-469; Guaranty Motors Co. v. Hudford Phila. Sales Co., 264 Pa. 557.

Now, to wit, December 22nd, 1919: Judgment is

entered for the plaintiff and against the defendant, for the sum of $5,105.19 with costs, for want of a sufficient affidavit of defense, with leave to plaintiff to proceed for the balance of his claim.

GALLAGHER v. BROWN.

Negligence-Driver-Package Falling from Dray-Evidence

Non Suit.

Where, in an action for injuries to plaintiff by reason of a heavy packing case falling from a dray in charge of a driver in defendant's employ, the evidence failed to show that the falling of the case was due to the negligence of the driver, the proximate cause alleged, a non suit is properly granted.

The principle of res ipsa does not apply, it having repeatedly been rejected by the courts of Pennsylvania in analogous cases.

Motion to take off non suit. In the Court of Common Pleas of Lackawanna County. No. 816, January Term, 1916.

Knapp, O'Malley, Hill & Harris, for Plaintiff.
R. L. Levy, for Defendant.

Newcomb, J., December 20, 1919.-Judgment of non suit was directed in an action of trespass for personal injuries suffered by plaintiff by reason of a heavy packing case falling from a dray. The place of the accident was on the Penn avenue side of Samter Brothers' store in this city, just northerly from the Lackawanna avenue junction. It is a street railway terminal where the conductors are required to deposit the transfers collected on the trip. The place of deposit is a box attached to an iron pole just inside the westerly curb on Penn nearly opposite the entrance to the store at which deliveries of freight are received. The defendant is in the draying business; his dray had been backed up to the curb for the purpose of unloading the package; plaintiff's car stopped there at about the same time; and he had just deposited his transfers when the casualty occurred.

The pole to which the box is attached was in such close proximity to the dray that he stood with his back against the rear end of it when the case, weighing upwards of 600 pounds, toppled over upon him.

What occasioned the fall did not appear in the evidence; and that accounts for the non suit.

The statement averred that it was due to the negligent act of defendant's servant who shoved the case off without warning. Hence, that is what plaintiff was in duty bound to prove. He saw no one on or about the dray. He saw nothing tending to prove that the thing occurred in the manner alleged. It seemed to be undisputed that the driver in charge of the dray was one Van Dyke, who had died in the meantime. The only evidence to which counsel can point as tending to show even that Van Dyke was then on the dray is the testimony of Manley, a by-stander; but it is inadequate to the purpose. It is this: "I seen Mr. Gallagher come around the pole to put his transfers in the box on the pole. I seen him walk from two to five feet and the box come down. I went over with the driver as he come out of the wagon— I don't know where he come from, he seemed to jump out of the wagon, and I said 'let's pull the box off." He said it weighs between 800 and 1,000 pounds, and I seen this Gallagher crawl out from under the box. Q. Did you see the driver at that time? A. Yes, sir. Q. Up to that time you hadn't see him? A. No. sir."

Needless to say this would hardly warrant the finding that either Van Dyke or any one else was on the dray when the case fell; much less that its falling was due to the careless act of the servant alleged.

The principle of res ipsa cannot be successfully invoked. It has been rejected by the courts of this state repeatedly in analogous cases. On one occasion the reasoning of the appellate court was supported by an illustration of rather pointed significance as applied here. The case arose from a falling trolley. The plaintiff was a pedestrian on the street, not a passenger on or about the car. Judgment on a verdict for plaintiff was reversed, and, among other things, it was said: "In the eye of the law the situation is no different from what it would be had the injury resulted from the falling of any article from a loaded wagon of a teamster using a street where there was nothing to indicate that there had been any negligence in building or securing the load upon the vehicle which carried it": Zercher v. Transit Co., 50 Pa. Sup. Ct., 324.