Austin, Gorham, McIlvaine & Co. v. Lincoln Chocolate & Confectionery Co.

Citations

• 78 Pa. Super. 530
• 1922 Pa. Super. LEXIS 155

Syllabus

<p>Pleading — Affidavit of defense — Sufficiency.</p> <p>In an action of assumpsit for breach of a contract, for the installation of a heating apparatus, the court properly refused judgment for want of a sufficient affidavit of defense, where it appeared that the plaintiff had installed the heater, ánd averred that it had been accepted by the defendant, but the affidavit of defense alleged a failure of the machinery to produce the required heat which it had been guaranteed to maintain.</p> <p>The pleadings having raised issues of fact as to whether or not there had been a guaranty, and whether each of the parties had performed their part of the several obligations undertaken by them, the defendant was entitled to a trial by jury and the question could not be decided by the court.</p>