Simpson v. Karr , 1903 Pa. Super. LEXIS 141 ( 1903 )

Opinion by

William W. Pobteb, J.,

This action is brought for a balance unpaid on an alleged sale of certain madras shirtings. The court below entered judgment for the plaintiffs, holding the affidavit of defense insufficient. While the affidavit is inartificially drawn, yet does it contain allegations of fact which make out a prima facie defense. There is clear averment that the goods (for the price of which the action is brought) were sold by the plaintiffs by sample, and that the plaintiffs expressly promised and agreed that the goods should correspond in quality and color with the sample. Again it is averred that the first installment of goods delivered was imperfect, and, on being notified of this fact, the plaintiffs requested the defendant to use as much of the goods as he could, for samples, agreed that an allowance would be made and that the balance of the goods should be perfect and correspond with the sample. The defendant further alleges that when the next installment was delivered, the goods proved to be entirely imperfect and unmerchantable; the weave knotty, the yarn dirty, the finish not up to the standard, the colors impure and blurred, the figures running into and covering one another, the pieces of goods broken into several parts, composed of remnants and unfit for manufacturing purposes for which the defendant bought and the plaintiffs sold, the goods. These averments are followed by another that the defendant immediately notified the plaintiffs of the defects and of his absolute rejection of the goods. He adds that $697.10 in cash paid to the plaintiffs before the delivery of the goods are still retained by the plaintiffs to the defendant’s “detriment and loss.” These averments in the affidavit, if proven, would make out a case of breach of an ex-ecutory contract of sale with express warranty as to quality. The goods are alleged not to correspond with the sample. The plaintiffs expressly agreed that they should. The defendant had a right to refuse to accept the goods. He says that he did this by giving prompt notice to the plaintiffs of his absolute rejection of them: Fogel v. Brubaker, 122 Pa. 7; Jones v. Jennings Bros. & Co., 168 Pa. 493; Tete Bros. v. Eshler, 11 Pa. Superior Ct. 224; Leechburg Co. v. Jennings Bros. & Co., 145 Pa. 559.

The judgment is reversed and a procedendo is awarded.