Deacon v. Uhlman

Opinion by

Beaver, J.,

The appellant objects to the sufficiency of the plaintiffs’ statement, principally because the specific dates of delivery of the milk, which is the basis of the claim, are not given with the amount delivered each day. This suit does not purport to be brought upon a book account, but for a balance for milk sold and delivered by the plaintiffs to the defendant. The statement contains the following specific averment: “ Plaintiffs aver that they sold and delivered to the defendant, in the month of March, 1901, 2,399 quarts of milk, and, in the month of April, 1901, 2,316 quarts of milk, at the price of three and one half cents per quart, the price agreed between them, making the total indebtedness therefor $165.03,” and then follow the credits and statement of the balance due.

This statement undoubtedly sets forth a good cause of action. It might have been more specific. Possibly the plaintiffs might have been able to make it more specific by setting forth the deliveries of milk each day during the two months in which deliveries were made. But the defendant made no effort to have this done. He endeavored to meet the'averments of the statement by his affidavit and has failed to do it in such a way as to make it an effectual barrier to the entry of judgment.

If the defendant kept an account of daily deliveries, it would have been a simple matter of addition to aggregate them and ascertain whether they agreed with the aggregate of monthly deliveries as claimed by the plaintiffs.

The claim of set-off for sour milk is very vague and indefinite as to time and there is no allegation that it was unmarketable, when received. As to the claim for freight paid to return the sour milk, admitted by the plaintiffs to have been sour, there is no allegation that plaintiffs -requested its return and, unless they did so, they would not be liable for freight. The affidavit of defense is clearly insufficient and the court below was correct in so holding. .

Judgment affirmed.