DocketNumber: Appeal, No. 65
Citation Numbers: 57 Pa. Super. 580
Judges: Head, Henderson, Kephart, Orlady, Porter, Rice, Trexler
Filed Date: 7/15/1914
Status: Precedential
Modified Date: 2/18/2022
Opinion by
The defendant Harned had entered into a written agreement with the plaintiff under the provisions of which he was to act as the exclusive agent for the sale of the products of the manufacturing plant of the plaintiff, within a specified territory. The agreement required the plaintiff to deliver to Harned such goods as he might order for sale, and it required Harned to sell the goods for cash only at marked prices, to keep a correct and complete account of every cash sale and all goods left on trial, to make out and send to the plaintiff, at the end of each week, a report showing all sales of the preceding week, the amount of cash received therefor, and to remit the cash collections; to make and send to the plaintiff a complete inventory of all goods on hand
The statement filed by plaintiff was complete in every detail, it set forth every specific item of merchandise delivered to the defendant, with the date and value thereof. The affidavit of defense did not deny that Harned had received any of the property alleged in the statement, nor did it deny that he had failed to pay or account for the goods. The only attempt to account for the goods or any part of them contained in the affidavit of defense was as follows, viz.: “That during the years said deponent was acting as agent for the plaintiffs, in addition to selling goods for cash he left large quantities of goods on trial with parties he judged to be responsible, in accordance with said contracts, a greater part of which goods so left on trial he either took back or collected the cash for. Some of the goods he so left on trial he was unable to get returned or to collect the value thereof, for various reasons which were entirely beyond his control, some- people moving away and he being unable to find them, sales being made largely to miners in Mercer county, many of whom were foreigners. That said deponent did all he could to collect for goods so left on trial or to have the goods returned, and down to the time he quit acting as agent for plaintiffs the amount of goods left on trial, uncollected for and not returned, amounted to quite an amount, probably in the neighborhood of the amount claimed by the plaintiffs in this case. That said deponent has books showing an account of the goods left on trial and uncollected for and will produce the same at the trial of this cause.” The affidavit admits that the greater part of the goods left on trial the defendant had either taken back or collected cash for. The cash which he had collected he ought to have paid over and the goods which he had taken back he ought to have accounted for. As to the goods which he asserted he had left on trial and had
The averment of the affidavit of defense that a new contract was made, on April 24, 1908, the terms of which were different from the contracts entered into prior thereto, is also insufficient to prevent judgment. The affidavit distinctly states that the alleged contract, of April 24, 1908, was in writing, “that deponent has a copy of said contract last entered into and will produce the same upon the trial of this cause.” When an affidavit sets up a written instrument as a defense against the claim of a plaintiff, it must have attached to it or contain a copy of the instrument in order that the court can construe it and determine whether the defendant’s interpretation of the same is correct, unless he gives a good and sufficient reason for his inability to attach such copy: Erie City v. Butler, 120 Pa. 874; Willard v. Reed, 132 Pa. 5; Superior National Bank v. Stadelman, 153 Pa. 634. This affidavit did not sufficiently aver facts constituting a defense to the claim of the plaintiff as against Harned, nor did it properly aver that the contract had been so changed as to relieve Wright and Mills, the sureties, from liability for the goods delivered by plaintiff to Harned.
The order of the _ court below is reversed and the record is remitted with direction to enter judgment against the.defendants for sum such as to right and jus
Orlady, Head, Henderson, JJ., dissent.