24 Pa. Super. 493 | Pa. Super. Ct. | 1904
Opinion by
In March, 1902, plaintiff contracted in writing with defendant to sell to the latter a certain number of tons of ice each year for four years at a stipulated price per ton, the same to be loaded on cars and shipped by plaintiff as ordered by defendant : “ payments to be made weekly upon presentation of bills for the same.” This action was brought to recover for installments delivered between May 26, 1908, and June 25, 1903. Plaintiff alleges in its statement the presentation of weekly bills for these installments and defendant’s failure to pay them, and that “ accordingly on June 18, 1903, said plaintiff cancelled and annulled said contract.” The defendant alleges that on that date more than 3,000 tons were still to be delivered for the year 1903 under the contract; that the plaintiff persisted in its refusal to make further deliveries, and thereby defendant was forced to go into the market and purchase ice for the balance of the year at the prevailing market price, which was largely in excess of the price called for in the contract. In brief, he does not deny the indebtedness, but claims the right to a set-off for damages sustained by reason of the plaintiff’s refusal to continue shipping ice. No question is raised as to the sufficiency of the statement of set-off contained in the affidavit of defense; the plaintiff’s sole contention being that it had a right to rescind the contract on June 18, 1903, because of'the defendant’s failure to pay the bills in question upon presentation. The defendant admits that payments were not made weekly and “ avers that it was not the practice of the plaintiff to insist on weekly payments, but that on the contrary, the defendant, by and with the permission of the plaintiff, paid for the ice at different periods .... ranging from one month to five months, and that in no case were weekly payments made by defendant; nor did plaintiff insist on such payments, although the amount due often exceeded the amount now claimed, and in one instance exceeded $1,000.” In support of these averments defendant sets forth a list of installments delivered between April 1, 1902, and May 14, 1903, giving the dates of the several deliveries and payments.
This is an appeal from the refusal to enter judgment for want of a sufficient affidavit of defense. The question is whether the court ought to have held as a matter of law that
Appeal dismissed without prejudice, etc.