Raby, Inc. v. Ward-Meehan Co.

• Decision Date: 03 June 1918
• Docket Number: 251
• Citation: 261 Pa. 468,104 A. 750
• Parties: Raby, Incorporated, v. Ward-Meehan Company, Appellant
• Court: Pennsylvania Supreme Court

104 A. 750

261 Pa. 468

Raby, Incorporated, v. Ward-Meehan Company, Appellant

No. 251

Supreme Court of Pennsylvania

June 3, 1918

Argued April 2, 1918

Appeal, No. 251, Jan. T., 1917, by defendant, from judgment of C.P. No. 1, Philadelphia Co., June T., 1917, No. 826, for plaintiff, for want of sufficient affidavit of defense, in case of Thomas Raby, Inc., a corporation, v. Ward-Meehan Company, a corporation. Affirmed.

Assumpsit for goods sold and delivered.

Rule for judgment for want of a sufficient affidavit of defense.

The facts appear in the opinion of the Supreme Court.

The court made absolute plaintiff's rule for judgment for want of a sufficient affidavit of defense and assessed damages at $3,215.38. Defendant appealed.

Error assigned was the judgment of the court.

The judgment is affirmed.

M. D Hayes, with him William H. Wilson and Francis M. McAdams, for appellant.

Alex. Simpson, Jr., with him Clinton O. Mayer, for appellee.

Before BROWN, C.J., POTTER, STEWART, MOSCHZISKER and FRAZER, JJ.

OPINION

MR. JUSTICE FRAZER:

Defendant appeals from a judgment entered in favor of plaintiff for the portion of the claim as to which the affidavit of defense was deemed insufficient.

The action is on a book account for goods sold and delivered amounting to $5,280.83, a copy of the account being attached to the statement of claim. The affidavit of defense denies defendant "ordered or received any goods whatsoever from plaintiff upon an open book account, but avers that the items charged to plaintiff in the book account . . . were bought by virtue of written contracts hereinafter more fully recited in the statement of counter-claim" and concluded with a denial that defendant "is indebted to plaintiff in any sum whatsoever for goods purchased through an open account." No denial, however, is made that defendant received the goods or that the prices charged were proper. The counter-claim avers written contracts were entered into between plaintiff and defendant on the dates specified, whereby the former agreed to deliver to the latter certain merchandise, that on several of the contracts plaintiff refused to deliver the entire order, while on others no deliveries were made; in consequence of such default defendant was forced to resort to the open market and procure the goods at a price in excess of the contract price specifying amounts and prices, resulting in a total loss to defendant of $2,138.49. Defendant also claims a further loss of profits by reason of being obliged to discontinue the use of forty looms, during a period of two months, owing to the refusal of plaintiff to comply with the terms of his various contracts, the total claim for damage in this respect being $2,880.

As to the loss resulting from the increased price defendant was obliged to pay for the goods in the open market, the court below correctly held the affidavit presented a good defense, the rule being that the measure of damage to a purchaser for the failure of the vendor to deliver goods according to contracts is the difference between the contract price and the market value of the article at the time and place of delivery: Morris v. Supplee, 208 Pa. 253; Honesdale Ice Co. v. Lake Lodore Imp. Co., 232 Pa. 293. This rule is embodied in Section 67 of the Sales Act of May 19, 1915, P.L. 543, 562.

The main contention of defendant is that the contracts were entire for the delivery of specific goods and no recovery can be had by plaintiff without showing complete performance, or that performance was prevented by defendant. Conceding the general rule the present case does not appear from the affidavit of defense to be within the authorities cited by defendant. In the first place, the alleged special contracts relied upon and attached to the affidavit of defense do not require plaintiff to declare on them specially instead of the book account for goods sold and delivered. The writings set out are not orders, but merely confirmation of sales, apparently sent by plaintiff...