New Prague Flouring Mill Co. v. Kirschner

Citations

• 70 Pa. Super. 74
• 1918 Pa. Super. LEXIS 174

Syllabus

<p>Contract — Breach of contract — Custom of trade — Affidavit of defense.</p> <p>In an action to recover for breach of a contract made through plaintiff’s agent for the purchase of flour, an affidavit of defense is sufficient which avers “that when said proposal was signed...... it was with the understanding that it was subject to confirmation by mill......and was further made with the knowledge of the universal custom of the flour business......which......was known to and understood by the plaintiff company .and by your deponent, and......was so certain, uniform and notorious that the plaintiff company could not be mistaken......that said proposal required immediate confirmation by telegram.”</p> <p>Practice, C. P. — Affidavit of defense — Order for supplemental affidavit — Judgment.</p> <p>Where the court makes an order directing that if a supplemental affidavit of defense shall not be filed within ten days after notice thereof, judgment may be taken, and it appears that no notice of the order was given in accordance with the rules of court, the court may make an order permitting a supplemental affidavit to be filed; and subsequently, and after the term has expired a rule to open judgment nunc pro tunc as of the date of the previous order, and adjudge the supplemental affidavit sufficient and discharge the rule for judgment.</p> <p>In such a case the order permitting a supplemental affidavit to be filed was justified on equitable grounds because no notice of the first order had been given.</p> <p>The action on the rule to open judgment nunc pro tunc was proper, although made after the term, because it related to opening of a judgment not wholly adverse, but partly by default. The hybrid nature of such a judgment takes it out of the operation of the rule forbidding the opening of an adverse judgment after the term.</p>