Zeller v. Wunder

Citations

• 36 Pa. Super. 1
• 1908 Pa. Super. LEXIS 100

Syllabus

<p>Affidavit of defense — Practice, C. P. — Contract—Sale by sample — Fraud.</p> <p>In an action to recover for goods sold and delivered, defendant filed an affidavit in which he averred that the amount of goods ordered was $120 instead of $320, as claimed; that the goods actually bought were orally ordered by sample, that the plaintiff’s agent fraudulently induced the plaintiff to sign a paper saying that it was. mere promise to receive the goods when shipped, that the paper was in fact a written order for more goods than orally ordered, that the goods sent were not according to sample, that a large quantity had never been ordered, and that the goods had been returned to the plaintiffs. Held, that the affidavit of defense was sufficient to prevent judgment.</p> <p>Pleading — Statement of claim — Sale of goods — Insufficiency of statement — Affidavit of defense — Practice, C. P.</p> <p>Where a written contract for the purchase of goods provides that payment should be made in certain installments, if notes were given within ten days from date of shipment, the seller cannot maintain a suit for the goods brought before the first installment becomes due, unless he avers in his statement some breach of the contract that would make the purchase price of goods presently payable. If the purchaser did not give the notes, that fact is essential and must be pleaded. If no breach is averred, the statement is defective, and the defendant need not file an affidavit of defense. The insufficiency of the statement may be objected to in the appellate court, although no objection was made to it in the court below.</p> <p>When the consideration of the defendant’s contract is executory, or his performance is to depend on some act to be done or forborne by the plaintiff, or some other event, the plaintiff must aver the fulfillment of such condition precedent whether it were in the affirmative or negative, or to be performed or observed by him or by the defendant, or any other person, or