Bacon v. Scott

154 Pa. 250 | Pa. | 1893

Opinion by

Mr. Justice Thompson,

The appellant was permitted to file two supplemental affidavits of defence and, making the most of the opportunity thus afforded him, has, by a process of evolution, succeeded in averring facts which constitute a defence in this ease. The suit is upon two promissory notes given to Mershon & Co., in part payment for doors, blinds and moldings sold to appellant by them, whose agent the appellee was in making the sale. It is averred “ that the appellee is not the holder or owner for value before maturity, but the same were handed by Mershon & Co., the payees, to him for the purpose of debarring appellant from a defence to the same.” The language here used is identical with that used in Moeck v. Littell, 82 Pa. 356, in which it was said, viz.: “ This is not only an express averment that the defendant in error is not a purchaser for value of the note before it matured, but in substance the further avermen t that it is still the property of Rowley (the payee).” As against Mershon & Co., the payees, who are to be treated as the owner of these notes, tbei affidavits set forth with reasonable precision facts necessary to constitute a defence. They aver that the appellee as their agent made the sale of the doors, blinds and moldings in question to the appellant, under the express warranty and agreement that they were in size and dimensions like other doors, blinds and moldings being used in a large building operation, and were to be used therein. Mershon & Co. were engaged in business at East Saginaw, Michigan, from which place the articles sold were to be shipped. The appellant avers that he had no opportunity to examine them before he gave the notes sued upon. The averment is thus made that at the time of the sale in question the appellee, as the agent of Mershon & Co., made an express warranty and agreement as to the size and kinds of articles sold to appellant. It is then averred that the articles were unsuitable for the purposes ordered and not as represented in size and kind, and* that in consequence the appellant was compelled to sell them. The specific loss on each of the articles thus sold is then set forth, and it is followed by the averment that the prices for which they were sold were the best prices that could be obtained, and that they were all they were worth. The affidavits thus aver an express warranty, its breach, and the damages resulting therefrom. They therefore state sufficient facts to send this case to a jury.

Judgment reversed and a procedendo awarded.