Trenton Rubber Co. v. Small , 3 Pa. Super. 8 ( 1896 )

Opinion by

Rice, P. J.,

The practice of requiring of nonresident plaintiffs security for costs, is usually regulated by rule of court. Whether or not the court below has such a rule, we are not informed, and, so far as the case before us is concerned, it is immaterial. The court, in its discretion, may refuse to require the plaintiff to give security for costs unless the defendant sets forth in his affidavit a just defense to the action, and it was probably upon that ground that the order was refused in the present case. We need not speculate as to that however; for, being a discretionary matter, and there not being the slightest evidence of an abuse of discretion, the action of the court in discharging that rule is not reviewable here. Perhaps it would have been more regular if the court had disposed of it before, or at the time, it made absolute the rule for judgment for want of a sufficient affidavit of defense. But the court had not so tied its hands that it could not enter judgment. Having power to revoke the order staying proceedings, the entry of judgment may fairly be construed as an exercise of that power; and in this view of the case, the court simply perfected the record when it discharged the rule for security for costs nunc pro tunc. The omission to record the order at the time of entering judgment was not such an irregularity as invalidated the judgment or harmed the defendant in any way.

The plaintiff’s statement of claim sets forth the ingredients of a good cause of action with sufficient precision to require an affidavit of defense. The averments are, that the defendant ordered the plaintiff to manufacture for him, “at his expense,” a metal mold, that the plaintiff manufactured the mold and shipped it to the defendant, and that the defendant has refused to pay the cost of the manufacture of the mold, which was $90.00. Under the contract alleged in the statement of claim, the plaintiff was entitled, prima facie, to recover the cost of the mold, and was not bound to aver or prove that the thing manufactured was reasonably worth in the market what it cost to manufacture it. Having been made for a special purpose it might have had no market value. Under the circumstances of this case the rule laid down in Ballentine v. Robinson, 46 Pa. 177, is applicable, and the plaintiff was entitled to sue for the value of the article manufactured and delivered, and recover the contract price. Here the contract price was the expense or cost of manufacture. If the amount demanded was more than the price ordinarily charged for the manufacture of such an article, or if it was defective in construction or material, it was incumbent on the defendant to aver it in his affidavit of defense.

The mold was delivered to the carrier, consigned generally to the defendant at Philadelphia without qualification or restriction, pursuant to the defendant’s order to ship it to him when completed. The defendant admits that he had notice of its arrival at the carrier’s freight office in Philadelphia, and does not allege that the carrier refused to deliver it to him, or to permit him to examine it before taking it away, or that it was defective in any particular or was not made as directed. He claims that he was justified in refusing to receive it because the plaintiff’s counsel refused him permission to examine the box and its contents before doing so. But, as the mold had passed out of the control of the plaintiff — P. & R. R. Co. v. Wireman, 88 Pa. 264 — it is difficult to see how this can constitute a defense. It was not for the plaintiff or its counsel to grant or refuse the defendant’s request to inspect the mold at that time and place. This was a matter between the defendant and the carrier, and the plaintiff was not under obligation to interfere to secure him the privilege unless there was a prior agreement to that effect. The defendant’s averment that he ordered the mold “ with the understanding that if upon examination it should be found to vary or be incorrect, the same would not be received ” may mean, and probably does mean, no more than that it was his understanding that he should have the right to examine the mold before accepting it. It is not denied that he would have had that right even though he had taken it from the carrier’s hands. But it is very certain that an allegation so vague and ambiguous cannot be construed to mean that there was an agreement that he should be given an opportunity to examine the mold before paying freight charges and taking it from the carrier. If there had been such an agreement, he would, undoubtedly, have averred it in clear and unequivocal terms.

Where one orders an article to be manufactured and shipped to him, and the article is placed in the hands of the common carrier to be delivered to him without any qualification or restriction, he cannot successfully defend against an action for the price by merely alleging and proving that, after the article reached the place of consignment and was still in the exclusive custody and control of the carrier, the plaintiff or his agent refused, him permission to examine it before paying freight charges and receiving it from the carrier.

Under the local act of April 14, 1846 (P. L. 328) defendants in appeals from justices of the peace were required to file affidavits of defense, wherever the cause of action was within the affidavit of defence law. This provision was not repealed by the procedure act of May 25, 1887 (P. L. 272).

Judgment affirmed.