Straus v. Welsh

Citations

• 29 Pa. Super. 437
• 1905 Pa. Super. LEXIS 351

Syllabus

<p>Affidavit of defense — Sale—Sample—Warranty.</p> <p>In an action to recover on a contract of sale of tobacco defendant filed an affidavit of defense in which he averred that he purchased the tobacco by sample; “that the agent of the plaintiff firm showed defendant a sample which defendant worked and ’examined, and the express understanding was that the tobacco ordered should be exactly like sample. When the tobacco was delivered by plaintiff, defendant discovered that the said tobacco, which he wished to use for wrappers’, was not like sample in that a large part of the said leaf tobacco was broken and full of holes, which rendered it impossible to use it as wrappers, and some of it was so rotten that it fell off the stem. That the portion of the said tobacco so unfit for wrappers as aforesaid amounted to about 127 pounds, which, at the purchase price of 47J cents per pound, amounted to $60.00. That, although the plaintiff agreed with defendant to furnish him with good wrapper tobacco, the 127 pounds defendant has not used, and cannot use, and it is a dead loss to him if he has to pay plaintiff the said $60.00.” Held,, that the affidavit of defense was sufficient to prevent judgment as to the $60.00 to which defense was made.</p>