Lane v. Penn Glass Sand Co., Appeal, No. 54

Appeal, No. 54 | Pa. | Jan 6, 1896

Opinion by

Mr. Chief Justice Sterrett,

Pending the rule for judgment for want of a sufficient affidavit of defense to the plaintiffs’ claim as presented in their statement, the defendant company filed a supplemental affidavit. It was afterwards suggested by the court that, if the plaintiffs so desired, leave would be granted them to withdraw all the items of their claim except the 1st, 13th, 14th and 15th, and the rule for judgment would be made absolute for the amount of these excepted items, less payments made on account thereof. Acting upon this suggestion they withdrew the 2d to 12th items of claim, inclusive, and judgment for want of sufficient affidavit of defense was accordingly entered against the defendant for $2,154.26, the residue of said four excepted items.

The only question presented by the assignments of error is whether the court was right in thus adjudging the affidavits of defense insufficient to cany the case to the jury, on either of said excepted items of claim. The solution of that question depends on the averments of fact contained in the statement of claim and affidavits of defense respectively. As will be seen by reference to the former, the-plaintiffs base their claim on the contract, a copy of which is attached to and made part of their statement, coupled with an averment of performance thereof on their part. After referring to the agreement, its purpose, etc., they say: “That the said machinery, etc., was furnished as provided by the contract, and put in place in such a workmanlike manner as to do the work required in crushing, washing, drying and making the sand ready for the market. That not only the machinery, but also the labor required in placing the same, was of the best and in a workmanlike manner done, and was accepted by the managers of the said Penn Glass Sand Company after it had been properly tested by the plaintiffs. That thereupon the sum of $3,125 became due and owing plaintiffs, as is provided in said contract.” In immediate connection therewith, they admit payments on account amounting to $1,112.40, and as to the residue, $2,012.60, they aver that no part thereof has been paid, “ and no further offsets are due defendants.”

It may be conceded that plaintiffs’ averments of performance, etc., of which the foregoing is the substance, would be sufficient to entitle them to judgment were it not for the fact — which seems to have been overlooked by the court below — that the defendant company in its affidavit of defense has so far substantially traversed and denied said averments as to put the plaintiffs to proof thereof before a jury. After enumerating in detail the things to be furnished by the plaintiffs, the contract specifically provides that “ the said machinery, etc., including, and intending to include, all things necessary and needful for the setting up and furnishing a complete apparatus for crushing, washing, conveying and drying sand to the full capacity herein guaranteed by the said first parties, the parties of the first part agree to furnish all the above machinery and send one man to put up in complete working order and start said machinery. And the said first parties further agree to guaranty said grinding and washing machinery when put up to have a capacity of 8 tons per hour and the dryer to have a capacity of four tons per hour.”

Without referring at length to the affidavits of defense, it is sufficient’to say they expressly deny that plaintiffs substantially performed their contract, and aver that “the mill, plant or machinery” they agree to put up under the contract “was not erected or constructed in accordance with the terms of said contract, but in such an unworkmanlike and defective manner as to cause the defendant great loss and damSgej” etc. That the same was “ so defectively constructed in workmanship and of such defective material as to render the said plant almost wholly useless for the purpose for which it was intended.” After specifying wherein the plaintiffs failed to comply with their contract, etc., it is further averred, “ that without taking into consideration the injury defendant sustained by reason of the defective work done by the mill, owing to fault}' material and construction, and failure of the plaintiffs to perform their contract, the defendant sustained damages to more than the amount alleged to be due on the original contract,” etc.

The defendant’s affidavits contain all the elements of a substantial defense to the plaintiffs’ claim, and the court erred in holding otherwise.

Judgment reversed and a procedendo awarded.