DocketNumber: Appeal, No. 218
Judges: Head, Henderson, Lady, Morrison, Porter, Rice
Filed Date: 3/3/1910
Status: Precedential
Modified Date: 11/13/2024
Opinion by
Assuming, as we must, that what is plainly averred in the
The situation disclosed by the affidavit in this case is almost identical with that in Goodwin v. Schott, 159 Pa. 552, in which the Supreme Court said: “The affidavit of defense is quite sufficient to entitle the defendant to a trial by jury.”
In this case the defendant clearly sets forth an express warranty as to the extent and value of the business theretofore conducted by the plaintiff, on the strength of which the purchase was made; that in point of fact there never was or had been any business such as was warranted; that the plaintiff well knew this, but deliberately undertook to deceive the defendant and make him believe that he was buying something far different from that which he actually got. He clearly sets up the inferior value of the thing he got as compared with the warranty, and avers that such difference in value would be equal to or greater than the amount of the note sued on which was given to secure part of the purchase money. Such an affidavit, in our judgment, discloses a good defense and entitles the defendant to his trial by jury.
The argument of the learned counsel for the appellee that the defendant should have rescinded the sale and returned the goods before bringing his action, and that he delayed too long in bringing suit, is fully answered in Miller Lock Company v. Diehl Manufacturing Company, 37 Pa. Superior Ct. 585. The several affidavits filed are somewhat confusing on the question when the payment of $100 was actually made. Even if it were made some months after the purchase of the store, we do not think the court cóuld say as a matter of law that the defendant had thereby lost his right to make a defense otherwise
The judgment is reversed, the rule is discharged, and a procedendo awarded. The costs of this appeal to be paid by the appellee.