Holland v. Sunbury Iron Works

Opinion by

William W. Porter, J.,

This action is founded upon an alleged breach of contract for the sale of certain steel nail slabs. It is, in form, assumpsit. Under the act of 1887, the plaintiff was, therefore, entitled to an affidavit of defense hi reply to his statement of claim: Barr v. McGary, 131 Pa. 401; Market Co. v. Brooks, 163 Pa. 40.

This appeal is taken from the refusal of the court below to enter judgment for want of a sufficient affidavit of defense. The Supreme Court have repeatedly said, that an appeal in such a case is intended to reach only clear cases of error in law, and prevent the delay of a trial. “ In doubtful cases, especially in those requiring broad inquiry into facts, where the court refuses judgment, the matter in controversy should go to the jury, as the proper tribunal to decide the cause under proper instructions from the court: ” Griffith v. Sitgreaves, 81* Pa. 378; Radcliffe v. Herbst, 135 Pa. 568; Ætna Insurance Co. v. Confer, 158 Pa. 598; Ensign v. Kindred, 163 Pa. 638. In the two cases last cited, it was held, that it requires a very plain cause of error in law to sustain such an appeal. The decree being interlocutory, no injury, other than delay, can result to the complaining suitor.

There can be no difference of opinion in respect to the propo - sitions thus laid down by the Supreme Court. Appeals, such as this, not infrequently result in greater delay than procedure in due course to a trial. They should not be encouraged.

For the purposes of the present consideration, the plaintiff has set out a good cause of action. To his allegations respecting the breach of contract by the defendant, the latter replies by affidavit, alleging a prior breach by the plaintiff, and that the defendant did not refuse to accept slabs shipped under the terms of the alleged contract. The correspondence (for some reason attached to the statement of claim) shows the necessity for a fuller explanation of the relations and obligations of the parties than the present pleadings disclose. Under these circumstances, the cause must be tried. Adopting the language of Radcliffe v. Herbst, supra: “In view of the fact that the case may come here again upon another appeal, we decline to discuss its merits. It is sufficient to say that the affidavit discloses some facts that ought to be passed upon by the jury.”

Appeal dismissed at the costs of the plaintiff without prejudice, etc.