Fish v. Barr

22 Pa. Super. 131 | Pa. Super. Ct. | 1903

Opinion by

Smith, J.,

The plaintiff in his statement demands of the defendant $287.76, the value of five bales of mixed yarn, weighing 1,308 pounds, at the rate of twenty-two cents per pound, which he says the defendant procured under an agreement to sort it, when the price would be fixed and paid, or the yarn immediately returned. It is also averred that the yarn was not paid for or returned as agreed. After a supplemental affidavit was allowed, judgment was entered for want of a sufficient affidavit of defense, whereupon this appeal was taken.

The defendant does not deny the plaintiff’s statement as to the manner in which the yam was procured, or that he received five bales weighing 1,308 pounds, but claims-that he was “ to pay two thirds of the then market price of new yarn.” He does not state what the market price of new yarn then was, nor does he say what quantity he received or its value, or what quantity he delivered to, or is now in the possession of, the commission merchants, Schell, Taylor and Longstreth, nor is any quantity, price, grade or quality given in the affidavit. While averring “ a just and complete defense to the whole *of the plaintiff’s claim,” we are unable to ascertain from the affidavit its nature or extent. The material facts of this simple business transaction seem to have been evaded in the affidavit, at least no facts or standard is given from which a certain defense may be deduced. This is essential and cannot be dispensed with: Jenkinson v. Hilands, 146 Pa. 380; Galena Mining & Smelting Co. v. Frazier, 20 Pa. Superior Ct. 394. The defendant having failed in these particulars, he should not expect a court or jury to supply them for him.

Judgment affirmed.