Ferree v. Young

6 Pa. Super. 307 | Pa. Super. Ct. | 1898

Opinion by

Smith J.,

. The plaintiff appeals from the decree of the court below discharging a rule for judgment for want of a sufficient affidavit of defense. This court has followed the rule of the Supreme Court in this class of appeals: “ It must be a very plain case of error in law, if we sustain appeals in such cases as this, from the decree of the common pleas discharging the rule: ” Ætna Ins. Co. v. Confer, 158 Pa. 598. The affidavit of defense avers, that the plaintiff’s agent procured the defendant to advertise, on the representation that the plaintiff had room in the street cars for just one coal advertisement, and only one, and that if the defendant would place an advertisement with the plaintiff no other coal advertisement would be placed in the cars during the defendant’s contract. The affidavit further avers that the defendant relied upon this assurance and was induced thereby to sign the contract; that the plaintiff, notwithstanding the representation and promise, put the defendant’s advertisement with those of other coal dealers in the same cars; and that the defendant notified the plaintiff, as soon as he could do so, to remove his advertisement, as it was obtained through fraud and misrepresentation, and he would not pay for it. The affidavit is expanded with the elaborate phraseology frequently employed in those instruments, but we give tbe substance. The learned court refused to declare the affidavit insufficient, and we are therefore asked to hold that this ruling presents “ a very plain case of error in law,” which calls for correction. This we cannot do. The affidavit alleges representations which were in effect fraudulent, made by the plaintiff’s agent for the purpose of inducing the defendant to execute the contract, and a rescission of the alleged contract upon discovery of the alleged fraud. This raises questions of fact which cannot be determined by an appellate court.

Tbe decree discharging the rule for want of a sufficient affidavit of defense is affirmed.