Geo. McKay & Co. v. McKenna

Citations

• 173 Pa. 581
• 34 A. 236
• 1896 Pa. LEXIS 746

Syllabus

<p>Affidavit of defense — Contract—Failure to deliver goods — Practice, C. P.</p> <p>In an action to recover the price of bricks alleged to have been sold and delivered to defendant between November 5 and November 12, 1891, defendant’s affidavit of defense averred that plaintiffs failed to comply with their contract, to ship bricks to him on or before the 9th, by reason of which he was compelled to purchase bricks elsewhere; and the affidavit then continues, “subsequently to the 9th of November, 1894, it transpired that certain bricks which ought to have been shipped to me were shipped to the said siding in the name of McKay & Co., but not in my name, and I was not able to obtain the same until about November 28th, when I removed the same from the siding because of a notice that they were held at my risk, being my intention to save the cost of demurrage.” As to the sale on November 12, defendant averred that he received no notice of the arrival of the bricks, and as far as he knew they had not been delivered to him in his name. Held, (1) that the affidavit was insufficient to prevent judgment; (2) that if time was of the essence of the contract, he could not avail himself of this ground of defense after he had removed the bricks to his own yard.</p>