American Malting Co. v. Anthracite Brewing Co.

Citations

• 250 Pa. 462
• 95 A. 588
• 1915 Pa. LEXIS 971

Syllabus

<p>Affidavit of defense — Contracts—Sales—Insufficient averment's —Judgment by default — Rule to open judgment — Damages— Practice, C. P.</p> <p>1. Applications to open judgments by default and let defendant into a defense are appeals to the equitable power of the court and where a judgment has been entered for want of an affidavit of defense and an affidavit is thereafter filed the court will not open the judgment if it appears upon an inspection of the affidavit that it is insufficient to prevent judgment.</p> <p>2. An affidavit of defense must be taken most strongly against the defendant for it is presumed that he has made it as favorable to himself as his conscience will allow.</p> <p>3. In an action for the price of malt sold by plaintiff to defendant, the contract provided that “the buyer shall order the malt to be shipped......in approximately equal monthly shipments,” that the failure of the buyer to give shipping orders as required “shall entitle the seller to charge the buyer with storage or carrying charges of one cent a bushel per month or fraction thereof for the time any shipments are delayed by reason of such failure......” It appeared from the statement of claim that defendant had accepted several shipments, but on the date when the last order should have been given, refused to give shipping directions for the balance, and that plaintiff had thereafter carried the malt for defendant, and claimed the contract price thereof. Judgment was entered for plaintiff for want of an affidavit of defense. The defendant moved to strike off the judgment and filed an affidavit of defense which alleged that the malt which plaintiff shipped and intended to ship was of an inferior grade to that specified in the contract, which fact had been acknowledged by plaintiff; that an adjustment had been made, but that such adjustment “was not sufficient to cover the loss the defendant suffered by reason of the failure of the plaintiff to perform his contract,” which loss could