The plaintiff claims from the defendant the sum of $102.18 for goods and merchandise alleged to have been sold to her, as per an itemized account attached to the statement. He avers that the same were delivered to the defendant at her special instance and request, that the prices were correct and what she agreed to pay, and that she has failed and refused to pay the same.
The affidavit of defence admits the purchase of the goods and that the total price was $1030.89, as stated in the exhibit, of which $928.71 was paid. She,
The bill of $290.97 for petticoats bears date May 17, 1920. She does not deny that she paid on account of it, as set forth in the credits, $237.11 between that date and July 9, 1920. It is also not denied that she continued to make purchases from the plaintiff up to June 16, 1921, and that she paid him on account various sums up to Dec. 1,1922. She never returned any of the goods, and if she ever attempted to return them, it must have been after she had ascertained he was out of business, and this could only have been after the date of the last credit, which was more than a year and a-half after the purchase. When she found, on examination, that they were rotten, she does not state, nor does she state the quantity that was rotten.
It is a well-known rule that evasive and incomplete affidavits of defence to statements of claim which comply with the statute never prevent judgment: Wayne T. & P. Co. v. Thomas Petroleum Products Co., 83 Pa. Superior Ct. 168. In addition, it is decided in Grosh v. Yerger, 39 Lanc. Law Rev. 189, and in’ many other cases, that where a buyer accepts or retains beyond a reasonable time goods, knowing that when delivered to him they were incomplete or of less quantity than he contracted to buy, he must pay the contract price. Section 48 of the Sales Act of May 19, 1915, P. L. 543, also says that “the buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them.”
It seems to us that the affidavit of defence is wholly insufficient, and as to the alleged set-off, it is also of no avail.
The rule for judgment is, therefore, made absolute and judgment is entered against the defendant for the sum of $102.18, with interest from Dec. 1, 1922, making $119.55. Rules made absolute.
From George Boss Eshleman, Lancaster, Fa.