Armor Lithographing Co. v. Allegheny Machine Co.

Citations

• 1 Monag. 84
• 1889 Pa. LEXIS 1245

Syllabus

<p>Plaintiffs’ affidavit of claim, in an action of assumpsit, brought May 14,1887, averred that they had made a contract of sale and had delivered to defendants an engine and boiler, on Nov. 1,1886, to be paid for in instalments, the first of which was to be paid in two weeks from date of satisfactory working of engine; that defendants refused to pay, or say whether the engine and boiler were satisfactory or not; that on April 30,1887, the plaintiffs notified the defendants that the latter must either pay for them or permit plaintiffs to remove them on or before May 4,1887, or plaintiffs would bring suit. The affidavit of defense admitted the contract of sale, but averred that plaintiffs agreed to put up one fifteen horse power engine and boiler, and to keep the machinery in first-class working order for two years from date of starting the engine, without cost to defendants; that the working of the engine was irregular; that it had at no time developed a power equal to fifteen horse power, and never had worked in a satisfactory manner; that plaintiffs had failed and refused to keep the engine in first-class working and running order for two years; that the engine could not he made to run properly, and would have to be replaced by a new one; and that defendants were ready and willing to pay plaintiffs the contract price upon their carrying out their contract. The court below entered judgment for want of a sufficient affidavit of defense. Subsequently the defendants presented a petition alleging more extended grounds of defense, praying that judgment be opened, and they be admitted to a defense, which prayer was refused. Held, that the affidavit of defense was insufficient.</p> <p>Query, whether or not the petition to open the judgment was treated as a supplemental affidavit of defense, and considered in this case.</p>