Hayes v. Kingston

Citations

• 1 Monag. 151
• 16 A. 745
• 1889 Pa. LEXIS 1293

Syllabus

<p>In an action of assumpsit, brought December 6,1887, by Kingston, to the use of another, the plaintiff’s statement claimed to recover the amount, with interest, of two promissory notes, of §100 each, drawn by defendants to the order of Kingston, averring that the plaintiff was the lawful holder and owner of the notes. Copies of the notes were filed with the statement, and an affidavit made by Kingston that “ the matters alleged as a basis of his claim in the suit are just and true to the best of his knowledge and belief.” An affidavit of defense filed alleged that the notes, with six others of like amounts, were given in payment of a car load of roofing paper bought from Kingston for $800, all of which was paid except these two notes; that the sale was made with the express agreement that the paper should be of a quality, as respects its capacity to absorb tar, equal to the sample sent and upon which the order was originally based; that the quality ordered, and which it was agreed this car load should be, would absorb, in the process of saturation, three thousand pounds of tar to every two thousand pounds of paper; that the paper received was so hard and damp that it would not absorb more than two-thirds of what was necessary to make it correspond with the sample, and with the requirements of the trade; that the hardness and dampness were caused by the imperfect method of its manufacture and was not discovered by defendants until they came to saturate it with tar, which was after the payment of the six notes; that the loss by reason of the defective jireparation of the paper was equal to thirty per cent, of its cost, or more than the plaintiff’s claim; “that it does not appear from the plaintiff’s statement how or in what manner the use plaintiff came in possession or acquired an ownership in the notes sued on, but the deponent avers that such possession or ownership was acquired by the said use plaintiff long after the maturity of the said notes, and with full no