Rakestraw v. Woodward

Citations

• 25 Pa. Super. 165
• 1904 Pa. Super. LEXIS 34

Syllabus

<p>Affidavit of defense — Practice, C. P. — Contract—Sale.</p> <p>In an action upon a promissory note defendant filed affidavits of defense in which, he averred that the note was given in settlement for peach trees which plaintiffs expressly agreed would be “ true to name as represented,” that they were not “true to name as represented,” but were a comparatively worthless variety, by reason of which deceit defendant suffered damage in a larger amount than plaintiffs demand, which was claimed as a set-off. The affidavits further stated that the distinctive variety of the trees would be .exclusively known to the seller, that there was prompt notice of the defect, that plaintiffs requested defendant to leave the trees standing for another season to see if they would not do better, and that after that season defendant cut them down as worthless. Held, that the affidavit of defense was sufficient to prevent judgment, that defendant was entitled to a trial, and that the question of the measure of damages could only be determined at the trial.</p>