Stanton v. Philadelphia & Reading Railway Co.

Citations

• 236 Pa. 419
• 84 A. 832
• 1912 Pa. LEXIS 767

Syllabus

<p>Practice G. P. — Affidavit of defense — Action ex contractu— Tort.</p> <p>1. In an action of assumpsit to recover the value of a large quantity of celery which the defendant accepted for storage at its cold storage warehouse, and permitted to freeze and spoil, an affidavit of defense must be filed by the defendant where the plaintiff’s statement of claim avers that “the defendant agreed to and with the plaintiff to use all reasonable, proper, ordinary and customary means for the preservation and care of the said celery, and maintain a temperature in the room or rooms in which it was stored, which would protect it against freezing,” and that it failed to comply with its agreement.</p> <p>2. In such a case the proper action is in assumpsit. The fact that the breach of the contract occurred through negligence which was tortious in its character makes no difference; nor is the doctrine of waiver of tort involved, inasmuch as the defendant made no profit for itself out of its wrongful acts.</p>