Court of Common Pleas of Montgomery County National Rubber Products Co. v. Smith Plaintiff brought suit against defendant for certain amount alleged to be due it. An affidavit of defense was filed admitting certain liability but denying liability for the larger portion of the claim. The affidavit of the defense on the whole did not comply with the requirements of the Practice Act, and therefore insufficient to prevent judgment and judgment therefore is entered for the amount as set forth in the statement claim less the amount charged for certain articles alleged to have been returned to the plaintiff. No. 128, Nov. Term, 1919. Rule for judgment for want of a sufficient affidavit of defense. Evans, High, Dettra & Swartz, Attorneys for Plaintiff. Joseph L. Prince & Maxwell Strawbridge, Attorneys for Defendant. Opinion by Miller, J., June 26, 1920. The plaintiff, a manufacturing corporation, brings this action of assumpsit for the recovery of a balance claimed to be due by the defendant, a merchant, for automobile tires and tubes sold and delivered and attaches to its statement of claim that which is averred to be a true and itemized list of the goods sold and delivered and the invoices thereof, as taken from its books of original entry. The gross claim is for $52,161.29 against which various credits aggregating a total of $49,779.49 are allowed, whereby the net balance alleged to remain due and unpaid is $2381.90, with interest. The account covers a period commencing with September 8th, 1919, and ending with January 12th, 1920. An examination of the statement of claim and the exhibits thereto attached, consisting of copies of 65 invoices, makes it possible to classify the plaintiff's gross claim as follows: 353 tubes invoice No. 1684, dated Oct. 9, 1919$ War tax, charged on 34 invoices, aggregating a total of 1,631 15 Balance of the claim, being made up principally of the net amount alleged to be due for tires and tubes 741 30 .... 49,788 84 $52,161 29 National Rubber Products Co. v Smith There is no dispute between the parties as to the credits to be allowed. Both agree that their proper and aggregate amount is $49,779.49. The defendant admitted liability to the extent. of $886.51, which, it was stated at bar, has been paid since his affidavit of defense was filed. The amount now in dispute has, therefore, been reduced to the net sum of $1495.29 and apparently it involves only the following items: 1. 152 blemished tubes, included in invoice of Oct. 9, 1919, No. 1684, which the defendant claims he had the right to return and offered to do so, but avers that acceptance thereof was refused........................$ 319 20 2. Minor errors and overcharges on invoices Nos. 1596, 7 & 8; 1662 & 91; 1747, 80 & 90; 1959 & 99; 2066, 72 & 93; and 2234 & 40.................. 3. Difference between the amount of war tax claimed by plaintiff, $1631.15, and that admitted by the defendant, (see last item of exhibit "A", attached to affidavit of defense), $550.73 or 195 61 1080 42 $1595 23 Unfortunately the defendant, in preparing his affidavit of defense made two errors in figures. One was typographical and in his own favor. The last figure in the amount admitted to be due was inadvertently changed from a 7 to a 1. This advantaged him to the extent of 6 cents. The other was a mistake in addition of $100 in the same connection. He evidently intended to admit liability for but $786.57, but the first figure was set down. as an 8. The net result is, therefore, that he has paid $99.94 in excess of the liability which he really intended to acknowledge. and this fact accounts for the difference between the amount remaining due to the plaintiff, on the face of its claim, and the total of the three items liability for which the defendant denies. We shall dispose of these items in the order in which we have set them forth. 1. It is not disputed that on October 9th, 1919, the plaintiff sold to the defendant 353 blemished tubes at $2.10 each and that the latter received them. It is set forth in the affidavit of defense, however, that, in and about all the dealings between the parties, they had a general agreement that any and all goods unsold could be returned to the National Rubber Products Co. v Smith plaintiff who should thereupon allow the defendant credit to the extent of their purchase price and that in pursuance of that understanding the latter had, at various times, returned goods. ordered and received full credit for them. That goods so ordered were afterwards frequently returned by him is evidenced by the statement of claim and the exhibits attached to it. The defendant distinctly avers by way of set off or counter claim that, in accordance with the aforesaid contract or agreement, he informed the plaintiff through its factory representatives, Roy Binder, that he, the said defendant, desired to return 152 of the blemished tubes in question and the plaintiff, in violation of the aforesaid contract or agreement, refused and neglected to accept them. He, therefore, claims a deduction of the plaintiff's claim to the extent of their purchase price, or the sum of $319.20. While neither the time of this offer and refusal to accept nor the authority of Mr. Binder in the premises is set forth definitely as might, and possibly, should have been done, yet, in view of the large number of transactions involved in the suit, the nearness of this particular sale to the time of its entry, the fact that the plaintiff is a corporation and not an individual, and the general course of dealing between the parties, as shown by the statement of claim, we are of opinion that, to the extent of the amount involved in this item, the plaintiff's right to judgment is not clear and the defendant is entitled to go to a jury. 2 and 3. The second and third items may be treated together To ascertain their respective amounts has required the performance of considerable work by the writer of this opinion because they are nowhere distinctly set forth by the defendant. His affidavit of defense is also in other respects of an unusual character. It consists of two parts, a so-called "affidavit of defense" which is followed by that which is entitled "set off and counterclaim." The former consists only of broad general denials "that the price and discounts as allowed by the said plaintiff" are true and correct; that the copies of invoices attached to the statement "are true and correct itemized statements of the goods sold and delivered to him or that the invoices were taken from the plaintiff's book of original entry" and that he is indebted to the latter in the amount demanded. It wholly overlooks the facts that the suit was brought primarily to recover for goods sold and deliver National Rubber Products Co. v Smith ed; that the book account is not of itself the cause of action but is only evidential in character; that when admitted at the trial it imports the sale and delivery of the goods; and that, so far as this aspect of the matter is concerned, the affidavit is more nearly a notice to produce the plaintiff's books at the trial than such a defense to the claim as is required by law. See Act May 14, 1915, P. L. 483, section 8, and Fulton Farmers' Ass'n v. Bomberger, app. 262 Pa. 43. One may search in vain the affidavit of defense to learn in what respects "the prices and discounts as allowed by the said plaintiff', whatever this expression may mean, are not true and correct or why the defendant is not indebted in the amount demanded by the plaintiff. It is absolutely barren of information, makes no pretense of compliance with the Practice Act of 1915 and, of itself, is insufficient to prevent judgment. But let us for a moment refer to that which appears under the heading "set off and counter claim" for the purpose of ascertaining whether the defendant will be helped by our treating it as part of his affidavit of defense. It, except as to the blemished tubes, is but a repetition of the general denial of liability to the amount demanded and is without any averment of fact to support it. Nor does exhibit "A", attached to it, give any information on the subject. It contains nothing but a schedule of the dates, numbers and amounts of invoices liability for which is admitted. The invoices are not itemized, however, and where there is an apparent discrepancy between the amount of a particular one, as it is found attached to the statement and also appears in the schedule which is made a part of defendant's set off and counter-claim, we are utterly unable to learn its cause by referring to the body of the latter. As to the second and third items set forth above the affidavit of defense is clearly insufficient to prevent judgment. And now, 26th June, 1920, after hearing argument and upon consideration, judgment is ordered to be entered in favor of the plaintiff and against the defendant for the sum of Eleven hundred. and seventy-six dollars and nine cents ($1176.09), for want of a sufficient affidavit of defense, with leave to the plaintiff to proceed to trial for the recovery of the balance of its claim. VOL. XXXVI-No. 31 Court of Common Pleas of Montgmery County Dunn, Assignee, etc., v. Gibson A. leased his dwelling house to B. by lease dated April 9, 1912, the term was for one year and was to commence on May 11, 1912, with right to renew for a further period of one year. During the year 1919, A. sold his property to D. A's agent notified B. of the change of ownership and also that possession would be required by D. at the expiration of the present lease namely April 8, 1920. D. under the terms of the lease brought an action of ejectment on May 13, 1920. B. ask to be let into a defence, exception being taken to the notice on the ground that expiration, of the term was not properly stated. The Rule is discharged because the defendant was not in any way misled or deceived, the notice stating that possession would be required at the expiration of the term. No. 106, April Term, 1920. Rule to show couse why Judgment should not be opened. Evans, High, Dettra & Swartz, Attorneys for Plaintiff. J. P. Hale Jenkins, Attorney for Defendant. Opinion by Swartz, P. J., June 22, 1920. Henry W. Reinhart leased a dwelling house to the defendant George H. Gibson. The property is located at Melrose Park, this county. The lease is dated April 9, 1912. The term was for one year and was to commence on May 11, 1912. The lease provided, "unless either party hereto shall give to the other written notice for removal, at least three months prior to the end of said term, the lease shall continue, upon the terms and conditions last in force, for a further period of one year, until terminated by either party hereto giving to the other, at least, three months written notice for removal, prior to the expiration of the then current term." The lease was signed by the said defendant, but not by the lessor Mr. Reinhart. This was sufficient to bind the tenant, who went into possession and continued to occupy the premises to this date. A lease signed and executed by the tenant and accepted by the landlord sustains a judgment in an amicable action of ejectment entered under the agreements of the lease;-Schultz vs. Burlock, 6 Pa. Superior Ct., 573. |