Terry v. Wenderoth

Citations

• 147 Pa. 519
• 23 A. 763
• 1892 Pa. LEXIS 883

Syllabus

<p>• Practice (C. P.) — Statement.</p> <p>The blending of a count upon a warranty with the statement of a different cause of action upon which the plaintiff relies is not to be commended.</p> <p>Affidavit of defence laxo — Surplusage.</p> <p>An affidavit of defence traversing averments in the statement not of the essence of the undenied cause of action will not prevent judgment; such averments may be treated as surplusage.</p> <p>Practise (Supreme Court) — Act of May 20,1891.</p> <p>Under the act of May 20, 1891, the Supreme Court may modify the judgment without a return of the record.</p> <p>Warranty — Sale of horse — Affidavit of defence.</p> <p>Plaintiff averred in his statement that he purchased a horse from defendants ; that immediately thereafter he exhibited to defendants a veterinary surgeon’s certificate that the horse was unsound; that the defendants refused to rescind the contract, and return the purchase money; that plaintiff ordered the horse to be sold at auction, but that before such sale could be made defendants proposed that a veterinarian should examine the horse, and if he should pronounce it sound that plaintiff should retain it. and that defendants should pay one half of the expense of the examination ; that the veterinarian pronounced the horse a “ roarer; ” that four days thereafter the defendants sent for the horse and still retained him. Roue of these averments were denied by the affidavit of defence. Held, that the conduct of the defendants in sending for and retaining the horse was not consistent with any other theor-y than that of a compliance, pro tanto, with plaintiff’s demand for a rescission of the contract, and that defendants were liable for the purchase money and one half of the expenses.</p>