Appeal, No. 135 | Pa. Super. Ct. | Jan 18, 1899
Opinion by
The court below discharged the rule for judgment for want of sufficient affidavit of defense. We do not think that this was error. The plaintiff claims that he made a contract with, the defendant to sell the latter certain bushels of lime, for which the plaintiff agreed to accept in payment equities in certain houses. Pursuant to this contract, the plaintiff shipped lime to the value of $526.53, and alleges that the defendant has not transferred the equities contracted for. The plaintiff also alleges that the defendant subsequently promised to pay the $526.53 as soon as he negotiated a certain mortgage, but after having negotiated the mortgage, he failed to make the payment. Tire plaintiff, therefore, sues for “ damages in the premises.” The defendant, in his affidavit, sets up a different contract. He says that he “ agreed to purchase lime from the plaintiff at the price named, (22 cents per bushel of 70 lbs.), to the amount of one thousand dollars ($1,000) in consideration of the plaintiff accepting in payment the equity in the house at the N. E. corner of Neff and Gaul streets, in the city of Philadelphia, subject to a first mortgage of one thousand dollars ($1,000). The equity agreed upon was one thousand dollars ($1,000), which offer was accepted by the plaintiff.” The affidavit denies the agreement set up by the plaintiff, and avers “ that the property and equity was fixed before the contract was consummated, and was the essence and inducement of the contract, otherwise, your deponent would never have made the contract.”
The affidavit further avers that the defendant has requested
These allegations of the affidavit are sufficient to prevent the entry of judgment. It is not necessary, at this stage of the litigation, to discuss the possible application of the statute of frauds to the contract, either as stated by the plaintiff or by the defendant. It is sufficient to say that on the statements made in the affidavit of defense, we are of opinion that the contract for the sale and delivery of the lime was an entire one, namely, to sell one thousand dollars ($1,000) worth of lime computed at an agreed rate per bushel. No time seems to have been fixed within which the lime was to be delivered, but the defendant alleges a demand for a delivery and a willingness to perform what he alleges to be his obligation.
The affidavit, therefore, alleges sufficient to indicate that the plaintiff is in default, and it is settled law that a plaintiff, who has defaulted in the substantial performance of an entire contract, may not recover to the extent of a part performance: Hartman v. Meighan, 171 Pa. 49.
All that we now decide is that the affidavit is to be taken as true, and assuming its truth, that the court below was right in refusing the motion for judgment, and its action therein is now affirmed.