Ogden v. Beatty

• Decision Date: 13 October 1890
• Docket Number: 113
• Citation: 20 A. 620,137 Pa. 197
• Parties: E. OGDEN ET AL. v. J. M. BEATTY
• Court: Pennsylvania Supreme Court

20 A. 620

137 Pa. 197

E. OGDEN ET AL. v. J. M. BEATTY

No. 113

Supreme Court of Pennsylvania

October 13, 1890

Argued March 28, 1890

APPEAL BY PLAINTIFFS FROM THE COURT OF COMMON PLEAS NO. 4 OF PHILADELPHIA COUNTY.

No. 113 January Term 1890, Sup. Ct.; court below, No. 319 March Term 1889, C.P. No. 4.

On May 4, 1889, Emanuel Ogden, John D. Hutchinson and George Hutchinson brought assumpsit against James M. Beatty, trading as James M. Beatty & Co. The plaintiffs filed a verified statement of claim, declaring upon a book account for yarn sold by them to the defendant, amounting to $1,118.75, and also upon four promissory notes, three of which were drawn by the T. Hermann Manufacturing Company and indorsed by the defendant, the fourth note being drawn by the defendant to the plaintiffs' order. The plaintiffs' claim as stated, was for $6,033.40, with interest thereon, and also $5.99, costs of protest upon said notes.

The defendant filed an affidavit of defence which averred:

"I have a defence to the whole of plaintiffs' claim in this suit of the following character: The notes in suit were all given for payment for yarn bought by me from plaintiffs, and all of said yarn, together with the yarn claimed for in plaintiffs' statement, was bought by me by sample which was shown by me to John Hutchinson, the member of plaintiffs' firm from whom I bought the yarn. The yarn delivered was of a lower grade than the sample and very much inferior thereto in quality, by reason of which I lost very much more than the amount plaintiffs claim in this case, by reason of claims made on me by my customers on account of the poor yarn in the cloth manufactured from the said yarn, and by reason of the cancellation of contracts made with me by customers on account of the lower grade and inferior quality of the yarn. My loss directly by reason of the lower grade and inferior quality of said yarn amounts to many thousands of dollars in excess of the amount claimed by plaintiffs in this case.

"I expect to prove these facts on the trial of this case."

A rule for judgment for want of a sufficient affidavit of defence was taken and, after argument thereof, discharged; exception. Thereupon the plaintiffs took this appeal, specifying that the court erred:

1. In refusing to enter judgment for want of a sufficient affidavit of defence.

2. In discharging the rule for judgment.

The judgment is reversed; and it is ordered that the record be remitted to the court below, with direction to enter judgment against the defendant for such sum as to right and justice may belong, unless other legal or equitable cause be shown why such judgment should not be entered. ^[*]

Mr George H. Earle, Jr. (with him Mr. Richard P. White), for the appellants:

1. This was not a sale by sample, although so called in the defendant's affidavit. A sample is "a portion of the goods to be sold, fairly taken from the bulk," and that term is inaccurately used in the affidavit, as the substance of the allegation is that certain goods were ordered by description, that is, the defendant showed to the plaintiff certain goods, and ordered certain other goods to be of the same description. The affidavit describes neither the goods shown to the plaintiffs, nor the goods received by the defendant under his order. Nor does it aver an agreement or warranty that the goods ordered should correspond with those shown. Whatever is not stated in an affidavit of defence is taken not to exist: Lord v. Ocean Bank, 20 Pa. 387. The defendant's allegation that he made a purchase by sample, is merely his own conclusion, and his general averment thereof is insufficient: Gould v. Gage, 118 Pa. 565; Stitt v. Garrett, 3 Wh. 283.

2. But if the defendant had properly alleged a warranty, the affidavit would still remain wholly frivolous and evasive as, when it comes to state the breach of warranty, it does not deal in facts, but merely in adjectives and opinions. It does not state a single fact in support of the defendant's opinion respecting the quality of the goods and the averments in this affidavit, being mere matter of opinion, upon which no indictment for perjury would lie, it does not comply with the requirements of the affidavit of defence law: Gould v. Gage, 118 Pa. 561; Erie City v. Butler, 120 Pa. 382; Stitt v. Garrett, 3 Wh. 283. Moreover, the affidavit fails to state properly the damages alleged to have been suffered. They are averred simply as a general statement of results, from unstated facts and unnamed conclusions of law. As the defendant nowhere denies getting and keeping the goods, he is bound, in any case, to pay what they were worth, notwithstanding their defects. His affidavit is an attempt to usurp the court's function of determining the law on facts stated, and is insufficient: Stitt v. Garrett, 3 Wh. 283; Gould v. Gage, 118 Pa. 565; Louchheim v. Becker, 3 W.N. 449; McCracken v. Congregation, 111 Pa. 106.

Mr. Josiah R. Adams, for the appellee:

1. While the strict legal definition of sale by sample is in accordance with the plaintiffs' contention, among the ordinary significations of the word sample are "specimen, example, illustration." An affidavit is not defective because of omitting to use words in a technical sense. It is enough if they are used with their ordinary conventional significance. There is nothing in the act of April 13, 1887, P.L. 21, which provides that there...