78 Pa. Super. 409 | Pa. Super. Ct. | 1922
Opinion by
The first question presented is, Was the judgment improperly entered? Rule 14, section E, municipal court, provides, “Rules for more specific statements, for judgments for want of sufficient affidavit of defense, and all interlocutory motions and rules shall be filed within five days after the service of the particular pleadings to which objection is made.” Defendant’s affidavit of defense was filed September 9,1921, and a copy was mailed to the plaintiff’s attorney on the same day, the hour of the mailing not being given. This was on a Friday; the following Monday, September 12th, the plaintiff’s attorney acknowledged receipt of the copy and on September 16th, entered a rule of judgment for want of sufficient affidavit of defense. The court made the rule absolute September 26, 1921. It will be observed that more than five days elapsed from the mailing of the
The court held the affidavit filed to have been insufficient. The statement sets out by dates and items and prices, three shipments of dresses, containing respectively six, three and three dresses, the price for the entire shipment being $867, with credit allowed for samples returned. The defendant admits the purchase, admits a sum due, but claims a credit for $174 for four dresses returned, which were not perfect and salable for the reason that they were mussed and soiled and appeared as though they had been tried on by a large number of persons prior to shipment. The particular dresses returned are not indicated, nor in what shipment or shipments the dresses were included. No warranty is alleged on the sale of the dresses, nor is a sale by sample set forth. It is alleged that the goods were to be perfect and salable, but the affidavit is framed more as expressing a conclusion of the defendant. Where and by whom the bargain for the goods was made and whether the defendant saw the dresses or had opportunity to see them is not disclosed. The appellant relies on the 69th section, Sales Act
The assignments of error are overruled and judgment is affirmed.