New Prague Flouring Mill Co. v. Kirschner , 1918 Pa. Super. LEXIS 174 ( 1918 )

Opinion by

Williams, J.,

Plaintiff declared for breach of a contract to purchase flour.

Defendant’s affidavit averred that, according to a custom of the business, telegraphic confirmation from the mill was necessary within twenty-four hours after placing the order, or the buyer could treat it as cancelled.

Plaintiff moved for judgment because the custom was not averred with the necessary particularity. April 4, 1917, the court made the following order: “If......supplemental affidavit be not filed within ten days after notice hereof, the rule on motion will be made absolute.” April 17th, judgment was entered. April 21st, by permission of the court, a supplemental affidavit was filed, which averred “that when said proposal was signed ......it was with the understanding that it was subject to confirmation by mill......and was further made with the knowledge of the universal custom of the flour business......which......was known to and understood by the plaintiff company and by your deponent, and...... was so certain, uniform and notorious that the plaintiff company could not be mistaken......that said proposal required immediate confirmation by telegram.” No such confirmation was received by defendant. •

May 22d, exceptions were filed to the order of April 21st, and to the sufficiency of the supplemental affidavit. June 18th, defendant suggested by petition that the supplemental affidavit raised a meritorious defense. July 19th, the court granted a rule to open judgment nunc pro tunc as of April 17th, adjudged the supplemental affidavit sufficient and discharged the rule for judgment.

Appellant contends that the court erred in holding the supplemental affidavit sufficient. We cannot agree with this contention. The cases cited are those in which the sufficiency' of proof and not of averment was in question. An affidavit of defense is sufficient if it avers a fact, which, if proven at the trial, would be a good defense, and need not aver the evidence.

Appellant further contends that the court erred because (a) there was insufficient equitable ground for opening, and (b) the judgment was for want of a sufficient affidavit of defense — an adverse judgment — which could not be opened after the expiration of the term in which it was entered.

■ (a) No notice of the order of the court of April 4th was given in accordance with the rules of court, which was an equitable reason for the action of the court.

(b) We think the judgment was opened, April 21st, when the court allowed the filing of the supplemental affidavit. The subsequent granting of the rule and opening of judgment were mere formalities. The order permitting the filing carried with it as an incident the actual opening, and the power to open an adverse judgment then remained in the court.

In Abeles v. Powell, 6 Pa. Superior Ct. 123, we held that a judgment for want of a sufficient affidavit of defense was adverse for the reason that the affidavit presents the facts in as favorable a light as defendant could place them, and, if it does not present a defense, there is no merit in defendant’s case. This record, however, reveals a meritorious defense. The entry of judgment was as follows: “......It appearing to the court that defendant has not filed a supplemental affidavit of defense ......within ten days after notice, in pursuance to, decision filed April 4, 1917,......rule for judgment for want of sufficient affidavit of defense is made absolute and judgment is entered in favor of the plaintiff.......”

This is not wholly an adverse judgment, for the order plainly shows that it is partly by default. Its hybrid nature takes it out of the operation of the rule forbidding the opening of an adverse judgment after the term. It determined nothing more than that the first affidavit was insufficient and that no supplemental affidavit was filed within ten days, and was, therefore, properly treated as by default.

The appeal is dismissed.