Anderson v. Williams

Opinion by

William W. Porter, J.,

The defendant in the case had two opportunities to present a defense by affidavit. Neither the original alone nor as supplemented by the second, sets forth facts which should have prevented the entry of judgment. Independent of the question whether there was a warranty and a breach, the defendant admits that a “few” of the boxes contained oranges “in accordance with the contract,” He wholly neglects to indicate more explicitly how many. The word “ few ” is a relative term and of great elasticity of meaning. The defense is set-off. The amount thereof is fixed by calculation of a loss alleged to be fifty cents per box. The set-off must be diminished to the extent of the number of boxes designated as a “ few.” The circumstances set out and the form of the defendant’s allegation indicate that he could have made an accurate statement of the number of good boxes and an exact calculation of the loss alleged to have been suffered. Upon the present affidavits it is impossible to liquidate the damages claimed as set-off.

The affidavits are further deficient in that while alleging that the defendant sold the oranges at auction, he does not state under what circumstances the sale was held nor what price the goods brought, but only “ that they were worth in the market at least fifty cents per box less than they would have been worth had they been of the kind ordered.” He fails to give the market price of the oranges of the kind he claims to have ordered and contents himself with alleging of the oranges delivered that he “ realized in consequence of their kind and character fifty cents per box less than he otherwise would have received ” and fixes the gross amount at $836, based on the whole number of boxes being deficient in kind and quality. This is an insufficient statement. The facts are evidently within the defendant’s knowledge. His claim of set-off must be alleged in his affidavit of defense with exactness not only as to source and character but also as to amount: Close v. Hancock, 3 Pa. Superior Ct. 207; Slag Works v. Krause, 5 Pa. Superior Ct. 622. The importance of the observance of this rule is made the greater since the passage of legislation permitting the plaintiff to take judgment for such part of his claim as is not denied by affidavit of defense, to be due.

The judgment of the court below is reversed and the record is remitted with direction to the court below to enter judgment against the defendant for such sum as to right and justice may belong, unless other legal or equitable cause be shown to the said court why such judgment should not be so entered.