Bair & Gazzam, Lim. v. Hubartt, No. 135

No. 135 | Pa. | Jan 5, 1891

OpiNion,

Mr. Justice Mitchell:

The plaintiffs’ affidavit that the dies were omitted by direction of defendant’s agent was a reply to the defence on the failure to make them, but was not a reply at all to the amount of credit defendant would be entitled to, if the jury should find that he did not so direct. The omission of the dies was an admitted and material variance from the written contract, and it was necessary for the plaintiffs to prove a justification for it. If they failed to do this, then the jury would have to pass upon the amount of damage occasioned thereby to the defendant, and upon this point the affidavit objected to was competent evidence under the rule of court, being a material averment of fact not directly and specifically denied by the answer.

But, it is argued that this part of the defence was not set-off, but failure of consideration, admissible in evidence under tire general issue, and therefore that the rule of court was not applicable. But whether it was a technical sehoff, or a defalcation under the broader practice of this state, or merely failure of consideration resulting in an over-payment which defendant sought to get back, is not at all material. In any aspect, it was a counter-claim by defendant against plaintiffs. The object of the rule of court is manifestly to reduce the contest at the trial to the points actually in dispute, and whenever any matter sought to be introduced at the trial, called by whatever name it may be, is such as to require notice to the other side, the object of the rule would seem to demand its application. The defence, as already said, was a counter-claim, which certainly in substance partook of the nature of a set-off, and might well be held to be within the meaning of the term as used in the rule. Whether or not it should be so construed was peculiarly for the court below; and all our cases agree that, upon a question of the construction or application of its own rules, a court can be reversed only for manifest and material error.

Judgment affirmed.