Kunkel v. Aircraft Control Corp.
| Decision Date | 27 December 1930 |
| Docket Number | 412-1930 |
| Citation | 101 Pa.Super. 35 |
| Parties | Kunkel v. Aircraft Control Corp., Appellant |
| Court | Pennsylvania Superior Court |
Argued December 11, 1930.
Appeal by defendant from judgment of M. C., Philadelphia County-1930, No. 732, in the case of Clarence H. Kunkel v Aircraft Control Corporation.
Assumpsit on a written contract. Before Bonniwell, J.
Rule for judgment for want of a sufficient affidavit of defense.
The facts are stated in the opinion of the Superior Court.
The court made absolute the rule. Defendant appealed.
Error assigned was the order of the court.
Edreth P. Acton, and with him Kesniel C. Acton, for appellant.
No appearance and no printed brief for appellee.
Before Trexler, P. J., Keller, Linn, Gawthrop Cunningham, Baldrige and Whitmore, JJ.
The plaintiff brought an action in assumpsit against the defendant, appellant, to recover $ 140, of which $ 30 was for balance due on a written contract for work and labor performed, $ 20 for extra work alleged to have been done, and $ 90 for lumber which plaintiff alleged defendant ordered through its agents or representatives but which was not included in the written contract. The defendant filed an affidavit of defense as to the items above mentioned and a counterclaim of $ 300 as damages for plaintiff's failure to carry out the terms of the written contract. The plaintiff entered a rule for judgment for want of sufficient affidavit of defense and filed reply to defendant's original counterclaim raising questions of law. The court below permitted the defendant to file an amended affidavit of defense and counterclaim, which set forth that as to the $ 30 claimed under the contract the plaintiff never completed the work covered by such contract, denied that the plaintiff performed extra work to the amount of $ 20, and further denied that the defendant or anyone for it ordered, received or accepted any lumber whatsoever from the plaintiff for which a charge of $ 90 was made, and set up a counterclaim for failure to perform.
The court below made absolute plaintiff's rule for judgment for want of a sufficient affidavit of defense, dismissed plaintiff's reply to defendant's counter-claim raising questions of law, and damages were assessed in the sum of $ 149.80. The petition of the defendant for reargument of the rule for judgment for want of sufficient affidavit of defense setting forth the fact that a counterclaim for a sum in excess of the amount claimed by the plaintiff remained unanswered, was refused by the court, and the record fails to disclose any reply or answer to defendant's amended counterclaim. No opinion was filed by the court below. There was no appearance in this court or printed brief for the appellee.
The appellant assigns as error (1) the action of the court in making absolute the rule for judgment for want of a sufficient...
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