88 Pa. Super. 343 | Pa. Super. Ct. | 1926
Argued April 26, 1926.
This appeal is from judgment for want of a sufficient affidavit of defense in a suit on an exemplification of the record of a judgment recovered by the plaintiff in a state court in Illinois. The learned counsel for appellant, who was not in the case until after the appeal to this court was taken, very properly conceded at the oral argument (German Trust Co. v. Plotke,
The exemplification of the Illinois judgment shows that plaintiff averred that he had been employed by *345 defendants to obtain contracts on their behalf for the purchase of peaches, for which services (with inspection, etc.) defendants had agreed to pay him 15c a bushel; that after contracts for 14,000 bushels had been obtained, defendants had defaulted and that he was entitled to his compensation earned. To that claim, defendants pleaded that they had engaged plaintiff to make contracts on their behalf for the purchase of peaches and that plaintiff had made such contracts and had paid on account thereof $3,450, but that plaintiff did not have all the peaches packed and loaded so that they could be shipped to defendants and that defendants never received them, by which breach of plaintiff's contract with them they had sustained losses to be taken account of in that suit.
Defendants appeared by counsel who participated in the trial; plaintiff obtained judgment for $1,657.50.
In the present suit the counter-claim proposed to be made, avers that plaintiff owes defendants $2,766 on the same transaction, and recites seven transactions in detail, all of which had been itemized in the plea in the Illinois suit as contracts obtained by plaintiff and for which a payment of $3,450 was made. Appellants aver that plaintiff accepted delivery on his own account of 1,383 bushels of peaches so purchased for defendants and thereby converted them to his own use, and also that the growers were unable to deliver the balance contracted for of the quality contemplated by the parties and that defendants for that reason refused to accept them. It is obvious therefore that the subject of the counter-claim had been in these particulars specifically pleaded in the action in Illinois, and no reason has been indicated to us why the remainder of them could not with equal propriety have been set up there as a bar or counterclaim. The defense made in Illinois, or that might *346
have been made in Illinois as part of the same transaction, can of course not be made here after it has been adjudicated there: German Trust Co. v. Plotke, supra; Hunt v. Snyder,
Judgment affirmed.