General Motors Truck Company v. Philadelphia Paving Company
| Decision Date | 15 March 1915 |
| Docket Number | 342 |
| Citation | 94 A. 235,248 Pa. 499 |
| Parties | General Motors Truck Company v. Philadelphia Paving Company, Appellant |
| Court | Pennsylvania Supreme Court |
Submitted January 22, 1913.
Appeal, No. 342, Jan. T., 1914, by defendant, from judgment of C.P. No. 5, Philadelphia Co., June T., 1914, No. 4861, for plaintiff, for want of a sufficient affidavit of defense, in case of General Motors Truck Company, a corporation, v Philadelphia Paving Company, a corporation. Affirmed.
Replevin for motor trucks.
Rule for judgment for want of a sufficient affidavit of defense. Before RALSTON, J.
The opinion of the Supreme Court states the facts.
The court made absolute the rule for judgment for want of a sufficient affidavit of defense. Defendant appealed.
Error assigned was the order of the court.
The assignment of error is overruled, and the judgment is affirmed.
John P Connelly, submitted a paper book for appellant.
D. H Solis-Cohen, Arno P. Mowitz, and Samuel D. Matlack, submitted a paper book for appellee.
Before MESTREZAT, POTTER, ELKIN, MOSCHZISKER and FRAZER, JJ.
This is an appeal from a judgment entered for want of a sufficient affidavit of defense. The action was replevin, brought to recover possession of two gasoline motor trucks. Defendant filed a counter-bond and retained possession of the trucks. In plaintiff's statement it was averred that on October 9, 1913, the motor trucks were delivered to defendant in pursuance of a written agreement, entitled a lease. By the terms of the agreement, defendant was to pay plaintiff as rental for the motor trucks, on signing the lease, $862.50; on delivery of the goods, $1,295.75; thirty days after delivery, $862.50; on April 1, 1914, $560.67, and on the first day of each month thereafter for nine months, $560.62. Defendant was to give plaintiff promissory notes for the last ten payments, bearing interest from March 1, 1914, "the same to be given and accepted, not as payment for said installments of rental, but as evidence of the amounts to become due thereunder, and to enable the lessor to discount or negotiate the same in such manner as it wishes." The agreement further provided, that upon payment of notes in full, if the lessee should desire to purchase the goods, the lessor would sell them, for the sum of $8,625.00, "and would apply the amount received for the rent of said goods, or upon said notes, upon the purchase price." Also that, if the lessee should fail to pay the rent as stipulated, or the notes, and in certain other contingencies, the lessor should have the right to take immediate possession of the goods, wherever found. It was also stipulated in the agreement, "that there are no representations, agreements or undertakings, express or implied, relating to said goods, other than those contained herein." The statement also averred failure by defendant to pay the installment of rental due on August 1, 1914, in consequence of which the plaintiff issued the present writ of replevin.
In the affidavit of defense, the averments of the statements are admitted, but there is an attempt to set up as a defense, the breach of an oral agreement, alleged to have been made contemporaneously with the written contract, and as an inducement to the same, by which plaintiff agreed with defendant, that a well equipped service station would be installed in the City of Philadelphia, at which repairs to the motors could be made, and new parts furnished as required. It was alleged that plaintiff had not installed such a service station, and that defendant had thereby suffered damages in excess of the sum claimed by plaintiff to be due as rent. The court below held that the affidavit of defense was insufficient, and made absolute a rule for judgment. Defendant has appealed. There is no averment, that the terms of the alleged contemporaneous oral agreement were omitted from the written contract, by fraud accident or mistake. In Crelier v. Mackey, 243 Pa. 363, we said (p. 366): ...
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