275 Pa. 535 | Pa. | 1923
Opinion by
On September 5,1916, plaintiff entered int'o a written contract for the sale to defendant of, inter alia, twenty-five cars of slack coal per month, for nine months, beginning with October, 1916, at $1.25 per net ton f. o. b. at the mines. Each month’s delivery to be treated and considered as a separate and independent contract and to be settled and paid for in cash on or before the fifteenth day of the next succeeding month. Pursuant to which plaintiff delivered to defendant carloads of the coal during each of the nine months, but in less numbers
Section 15 of the Practice Act of May 14,1915, P. L. 483, 486, provides, inter alia, “The set-off or counterclaim shall be regarded as the defendant’s statement of claim, and the plaintiff’s reply as an affidavit of defense thereto,” and must be stated with equal certainty: Guaranty M. Co. v. Hudford P. S. Co., 264 Pa. 557. The amended affidavit of defense superseded the original (Atherton v. Clearview Coal Co., 267 Pa. 425; Kay v. Fredrigal, 3 Pa. 220) and the question is, Does it, as admitted in evidence, together with the contract, make a prima facie case for defendant? This must be answered in the affirmative. Plaintiff contracted to deliver two hundred and twenty-five cars of slack coal at $1.25 per ton, and the affidavit sets out the number of cars delivered each month, making in all 136 cars and leaves a shortage of 89 cars, which, computed at the average tonnage of the cars delivered, makes a total shortage of
In such case, where the vendor fails to deliver the goods according to contract, the measure of damage to which the vendee is entitled is the difference between the contract price and the market value at the time and place of delivery: Iron Trade Products Co. v. Wilkoff Co., 272 Pa. 172; Seward v. Pa. Salt & Mfg. Co., 266 Pa. 457; Raby, Inc., v. Ward-Meehan & Co., 261 Pa. 468; Hauptman v. Pa. W. Home for Blind Men, 258 Pa. 427; Arnold et al. v. Blabon, 147 Pa. 372; Kountz v. Kirkpatrick, 72 Pa. 376; clause 3d of section 67 of the Sales Act of May 19, 1915, P. L. 543, 562. The vendee may recover such damage without having supplied his wants elsewhere: Seward v. Pa. Salt Mfg. Co., supra; Hauptman v. Pa. W. Home for Blind Men, supra. However, where the vendee has supplied his wants elsewhere he can recover no more than his actual loss: Morris v. Supplee, 208 Pa. 253, 260; Iron Trade Products Co. v. Wilkoff Co., supra. Here it does not appear that defendant supplied its wants elsewhere.
Section 6 of the above-mentioned Practice Act (P. L. 484) provides that, “Every allegation of fact in the plaintiff’s statement of claim or in the defendant’s set-off or counterclaim, if not denied specifically or by necessary implication in the affidavit of defense, or plaintiff’s reply, as the case may be, or if no affidavit of defense or plaintiff’s reply be filed, shall be taken to be admitted,” hence the sections of the counterclaim to which we have referred, not being denied, must be taken as admitted
As above stated, plaintiff’s reply was not offered in evidence nor was it brought upon the record in t'he manner pointed out in the opinion by the present Chief Justice in Buehler v. U. S. Fashion Plate Co., 269 Pa. 428, and therefore cannot be considered. The suggestion that plaintiff was obliged to furnish only so much coal as defendant’s business required, finds no support in the contract or proofs. The case must be decided on the record as made, and the court cannot go back to the pleadings for the purpose of modifying in any way facts which have been offered and admitted in evidence: Buehler v. U. S. Fashion Plate Co., supra. The pleadings, when competent as evidence and properly brought upon the record, must be treated as at least prima facie correct (Mellon National Bank v. Peoples National Bank, 226 Pa. 261; McCord v. Durant, 134 Pa. 184; and see Kull v. Mastbaum & Fleisher, 269 Pa. 202), hence, the trial judge rightly directed the jury to allow the defendant’s counterclaim.
The assignments of error are overruled and the judgment is affirmed.