National Metal Edge Box Co. v. American Metal Edge Box Co.

Citations

• 246 Pa. 78
• 92 A. 42
• 1914 Pa. LEXIS 475

Syllabus

<p>Affidavit of defense — Sufficiency—Contracts—Implied contract —Lis Pendens — State and Federal Courts — Judgment for plaintiff.</p> <p>1. The mere pendency of a suit upon a claim will not prevent the same claim from being used as a set-off in another action, and vice versa, the introduction of a claim as a set-off in one action, will not create a bar to a suit in another court in a direct action upon the same claim.</p> <p>2. A statement of claim alleged that defendant was a corporation engaged in the business of punching flat wire to make it available as metal strips for the edges of strawboard boxes; that plaintiff had delivered wire to defendant to be punched, which defendant agreed to punch and return immediately thereafter to plaintiff for a certain price; that defendant punched the wire, but in violation of its agreement, sold the same and received sums aggregating $2,071.83 in payment therefor, which was the reasonable market price thereof; that defendant stated that it would pay plaintiff said sum or would return the exact quantity of wire to plaintiff which plaintiff had delivered to defendant, but that defendant had done neither; that defendant received said sum for the use of plaintiff and was bound to pay said sum to plaintiff but refused so to do. The affidavit of defense failed either to admit or deny many averments of the statement and alleged that the statement of claim was defective, because it did not state whether the contract was oral, written or implied, as required by a rule of court, although it appeared from facts averred that it was implied; and that there was pending a suit in equity to enjoin plaintiff’s alleged infringement of a patent instituted by defendant in aFederal Court wherein plaintiff claimed damages for the conversion of such wire by way of set-off which was a bar to the action. The lower court discharged a rule for judgment for want of a sufficient affidavit of defense without filing an opinion so that it did not appear tha