Elzea v. Brown , 1915 Pa. Super. LEXIS 90 ( 1915 )

Opinion by

Trexler, J.,

The original affidavit of defense filed in this case admits the allegation contained in the second paragraph of plaintiff’s statement; namely, that the price agreed upon for the eggs was the sum of .1934 cents per dozen f. o. b. New York, but avers that the contract was made with the express understanding that the eggs were to be delivered to defendant in first-class condition. The supplemental affidavit of defense denies that the eggs were sold f. o. b. New York, but asserts that they were to be delivered in first-class condition in the city of Philadelphia. If the place of delivery was f. o. b. New York, of course, the condition of the eggs would have to be determined as of that place, and if Philadelphia, their condition on their arrival at Philadelphia would determine. These two allegations are directly contradictory, and in the opinion of the writer the court might have entered judgment for the plaintiff on that ground alone.

The fifth averment of the plaintiff’s statement is “Thereafter the defendant returned to the plaintiff 337 cases of said eggs, .which the plaintiff, under oral agreement and instructions from the defendant, sold for account of the defendant.” The answer to this in the original affidavit is that the defendant is without knowledge and demands proof as to the averment contained in said paragraph, but admits the return by the. defendant of the balance of the eggs. In the supplemental affidavit the defendant specifically denies that he ever sent any instruction to plaintiff to sell the eggs.

The answer, in the first affidavit, was tantamount to an admission of the fact alleged by the plaintiff. How could defendant require proof of plaintiff that such instructions had been given? He certainly knew whether he had given them or not and in the supplemental affidavit expressly denies having given such instructions. When a defendant puts in an affidavit a certain matter of defense, and the plaintiff then, upon motion for judgment, states his grounds for his motion, it is certainly going pretty far to allow a supplemental affidavit in which the defendant ignores his first affidavit and in contradiction of it alleges a new defense in order to meet the objection urged by the plaintiff. It will be observed in filing his supplemental affidavit the defendant offers no explanation of his contradictory statements. We can easily imagine that a defendant might honestly swear to an allegation which he afterwards finds is not correct. In such cases it would seem that when he subsequently changes his position he should afford some explanation as to why he has assumed a different attitude in regard to the question. “An affidavit of defense must not • be self-contradictory. It is argued that an original and a supplemental affidavit of defense are to be construed as one affidavit, and, therefore, when, without explanation, the supplemental affidavit contradicts the averments' of the original in matters essential to a valid defense, the court is warranted in holding that they are insufficient to prevent a judgment. This may be conceded as a general proposition ” Penrose v. Caldwell, 29 Pa. Superior Ct. 550. If, however, as was done in The Port Kennedy Slag Works v. Krause & Sons, 5 Pa. Superior Ct. 622, we regard the second affidavit as presenting the whole of the defense, we think it was insufficient.

When the eggs arrived at the city of Philadelphia two courses were open to the defendant. He might retain the merchandise and claim a deduction by reason of the inferior quality, or reject it and attempt to rescind the contract. He did neither. He exercised ownership over the eggs, retained sixty dozen, and the remainder he shipped back to New York. As was said in Estes v. Kauffman, 44 Pa. Superior Ct. 114, quoting Buffington v. Quantin, 17 Pa. 310, “A vendee who receives a thing into his possession before he has become acquainted with its qualities, has, if dissatisfied, but one of two courses to pursue: either to retain it and claim a deduction, or reject it and attempt to rescind the contract. In pursuing the latter, he has no contract to enforce. His game is to get rid of the bargain, by rejecting the vendor’s performance of his part of it. To this end it is necessary that he exercise no act of ownership, or give the property no direction but what is necessary to send it in specie to the vendor.” See Frankenfield v. Freyman, 13 Pa. 56; Snyder v. Lingo, 30 Pa. Superior Ct. 651.

In order to assert a rescission of the contract he is required to place the goods at the disposal of the plaintiff absolutely and without qualification. He could not rescind the contract and at the same time assert dominion over the goods. The defendant was therefore legally liable to pay for the goods at the contract price. He was bound to keep all the eggs or put them at plaintiff’s disposal by a rescission of the contract. He could not retain some and return some. Nothing in the contract of the parties authorized any such act on his part. The rescission must be of the entire contract. The reason for the rule is that upon the rescission of a contract the party rescinding must restore or offer to restore everything of value that he has received under the contract, to the end that the other party may be put in statu quo. Upon the same principle that requires a restoration of the status quo by the party asking redress, is based the rule that the rescission must be of the entire contract: 24 Am. & Eng. Ency. of Law (2d ed.), page 645, and cases cited in the notes; Beetem’s Administrators v. Burkholder, 69 Pa. 249; Fowler v. Meadow Brook Water Co., 208 Pa. 473.

The defendant’s affidavits do not disclose a valid defense.

The judgment is affirmed.