Koolbergen v. Yates

Citations

• 53 Pa. Super. 406
• 1913 Pa. Super. LEXIS 187

Syllabus

<p>Contract — Sale—Affidavit of defense — Duty to inspect — Laches—Warranty.</p> <p>1. In an action to recover the price of plants imported from abroad an affidavit of defense is insufficient which avers that the plants were not of the height specified in the contract, where it appears that the defendants paid the duty and ocean freight when the plants were delivered, and made no complaint of the height until they filed their affidavit of defense one year and a half after they received the plants.</p> <p>2. In such a case it was the duty of the defendants, after a reasonable time for inspection, to either accept or reject the goods, and, if they rejected, to promptly notify the plaintiffs.</p> <p>3. Where plants are purchased on the express warranty that they were hardy in the American climate, and the purchase was made upon the faith of the warranty, an affidavit of defense in an action for the price, is sufficient which sets up the warranty and avers that the plants received proper care and attention, but that all died and were totally worthless, solely because they were not hardy, as warranted.</p> <p>4. In such a case where it appears that the plants were imported, and that the defendants had paid the duty and ocean freight, they are entitled to repayment of the amount of duty and freight, as damages for the breach of warranty.</p> <p>5. In an action to recover the price of plants where it appears by the terms of the sale that the seller guaranteed “all varieties to be true to name and description,” an affidavit of defense is sufficient which avers that the defendants had ordered one variety of plants, and that the plaintiffs had delivered another variety which was worthless.</p> <p>6. In an action to recover the price of a number of plants imported from abroad, there was included a number of lilac plants. The defendants filed an affidavit of defense in which they averred that they had never ordered the lilacs, and that upon the arrival of the plants they had so