Loeper v. Haas

Citations

• 24 Pa. Super. 184
• 1904 Pa. Super. LEXIS 153

Syllabus

<p>Affidavit of defense — Practice, ü. P. — Supplemental affidavits of defense.</p> <p>If the court deems adefense tobe probably good, but defectively stated, a supplemental and even a third affidavit may be allowed. The extent of the indulgence is largely in the discretion of the court.</p> <p>Contract — Acceptance—Fixtures—Affidavit of defense.</p> <p>It will not be presumed as a matter of law that fixtures purchased for a store have been accepted by the purchaser if it appears from an affidavit of defense that the fixtures delivered differed not only in quality and value but in kind from those contracted for, and that there was a contemporaneous refusal to accept them, followed by express notice repeated from time to time to reconstruct them so as to make them conform to the contract, or remove them.</p> <p>In an action to recover the price of store fixtures a supplemental affidavit of defense averred that the plaintiff agreed that the fixtures should be of a certain' kind as to materials, construction and finish and be satisfactory in every way to the defendant; that the fixtures furnished differed in these particulars, the difference being specifically pointed out in the affidavit from the kind of fixtures contracted for, and were of less value and fitness for the use for which they were intended, and were not satisfactory to the defendant; that while they were being placed in his store, and immediately after they were put in, the defendant refused to accept them, and at the same time notified the plaintiff to correct the imperfections described in the affidavit, which the plaintiff has neglected and refused to do; that many times afterwards he notified the plaintiff to remove the fixtures; that they are of no value to the defendant; and that he is informed, believes and expects to be able to prove that the cost of reconstructing the fixtures so as to make them comform to the terms of the contract as to materials, construction and finish, would be greater than