nated 'Extras,' Exhibit C, was the sum plaintiff has failed to credit defendants of $577.66; that the total amount or for lumber of the price of $14.00 as value of all credits for lumber and mill- charged by the plaintiff and which lumwork returned, to which the owner is en-ber was left over and not used by the titled, is the sum of $230.40; that the plaintiff in the construction of the buildowner or reputed owner is entitled to ing and which sum was properly to be further credits on account of payments credited under the contract in favor of made from time to time upon said con- defendants against plaintiff. tract, in the sum of $1502.57, all of which appears by a statement marked 'Exhibit D' hereto attached and made part hereof.

"9. That the total amount of said contract is the sum of $2521.66, and the total credits on account thereof is the sum of $1732.97; that the balance due from the owner or reputed owner to the claimant is the sum of $788:69, with interest thereon from the 26th day of November, 1923..

"10. No part of said balance due has been paid by the owner to the claimant, although demand has been made for the payment of the same; and there are no set offs or counterclaims thereagainst."

The affidavit of defence is as follows: "Norman C. Julius and M. L. McMillan, defendants above named, hereby file. their affidavit of defence to the scire facias in the above entitled action as filed and aver that they have a defence in law and in equity to part of plaintiff's claim, the nature and character whereof is as follows:

"Defendants aver that the plaintiff has charged in said item of $788.69 the sum of $12.00 for hauling, which amount in whole or in part is not due and owing by defendants to plaintiff but is a charge beyond the contract and is not in law properly chargeable against the defendants and defendants are entitled to a credit of $12.00 for such improper charge.

"Defendants aver that plaintiff has charged defendants for 26 pieces of lumber two inches by six inches by ten feet and said pieces of lumber were all too short for use in the defendant's home and the plaintiff in charging the defendants with said lumber made an improper charge and illegal in that said lumber was not useable. The price charged by plaintiff against defendants was $10.40.

"Defendants aver that said items aggregating $195.40 are not owing by defendants to the plaintiff in whole or in part. All of which defendants aver they will prove on the trial of this cause.'

off is not pleaded with sufficient certainty under the rules of law.

As we have before observed, we think this reason must be sustained.

It will be observed that the defence advanced with reference to the doors is an alleged breach of warranty.

The first reason advanced by plaintiff's counsel for a basis on which to rest his "In said charge of $788.69 plaintiff has rule for judgment for want of a sufficicharged $100.00 extra for doors. De-ent affidavit of defence, is that the setfendant and plaintiff by verbal contract agreed for an extra price of $100.00 for a change in doors, the changed doors to be the same style and dimensions as the doors in the Haines Building at Market and Duke Streets, York, Pa., but defendants aver that the said doors were not constructed on the same style and dimensions as the Haines doors but were lighter in weight and of a thinner material, and plaintiff not having constructed the said doors as contracted for, the price payable for the said doors are the same in the original contract between the parties, to wit: $100.00 less than the amount sought to be collected by plaintiff from defendants.

"Defendants aver that the contract between plaintiff and defendants all lumber unused in said building would be accepted by the plaintiff and credit given on the contract. Defendants aver that

It will also be observed that the affidavits, in effect, admit that the doors referred to were accepted by defendant and used in the building, but it does not set forth when the discovery was made of the alleged defects; that the defendant gave plaintiff notice thereof at any time.

The defendants admit that the price. was $100. more than originally contracted for, but claim that the doors were not the same quality as ordered, and that therefore defendant is entitled to an offset of $100; that the price payable for said doors is the same as the original contract between the parties, to wit, $100

less than the amount sought to be collected by the plaintiff from the defend

ant.

There is nothing in the affidavit of defence which indicates that the defendant returned or offered to return the unused lumber referred to, or the 26 pieces of lumber alleged to be "too short for use," or what the unused lumber was to be used for.

These, and other defects in the affidavit of defence, are pointed out by the counsel for plaintiff, in support of the motion for judgment for want of a sufficient affidavit of defence.

of any avail, be stated with precision and exactness as to the amount, and the court must be left in no doubt as to its source and character, so as to be able to judge. of the propriety of its allowance against the plaintiff's claim." See also the cases of Port Kennedy Slag Works v. William Krauser & Sons, 5 Pa. Supr. Ct., 622625, and Elzea v. Brown, 59 Pa. Supr. Ct. 403-407.

It will be observed that the mentioned items in the claim of set-off are, $100. for defect in doors; $14 for "unused" lumber; $12 for hauling and $10.40 for "short" lumber, aggregating $136.40; The Sales Act of 1915, P. L. 543, Sec- whereas the allegation is that the defendtion 69 (beginning on page 562) pro-ant will be able to prove that “said items vides: "Where there is a breach of war- aggregating.$195.40 are not owing by deranty by the seller, the buyer may by his fendant to plaintiff in whole or in part," election, &c., &c., is an inconsistent averment and adds to the general uncertainty of the defence as stated in the affidavit.

(a) Accept or keep the goods, and set up against the seller a breach of warranty by way of recoupment in diminution. or extinction of the price;

(b) Accept or keep the goods, and maintain an action against the seller for damages for breach of warranty;

(c) Refuse to accept the goods, if the property therein has not passed, and maintained an action against the seller for damages for breach of warranty;

(d) Rescind the contract to sell or the sale and refuse to receive the goods, or, if the goods have already been received, return them or offer to return them to the seller, and recover the price or any part thereof which has been paid."

The argument of the plaintiff's counsel is that "The Sales Act defines the rights and remedies of the buyer, but in the administration of those remedies, he must comply with all the requirements of the law applicable to contracts."

The general rule, as stated by Mr. Justice McCullum, in the case of Class v. Kingsley, et al., 142 Pa. 636, 639, is “that the affidavit must contain all the facts necessary to make a legal answer to the claim, and that their omission cannot be supplied by possible inferences from facts which are stated."

In the case at bar, there is nothing to indicate that the defendant complied with the requirements of the Sales Act. There is no averment that the alleged defects. in the doors were pointed out to the plaintiff, or that the defendant at any time rejected them, or that there was any notice given or attempt made to return any of the articles or things which the defendant now seeks to off-set against the plaintiff's claim, under an undenied contract.

"After the actual reception of the The affidavit of defence admits the goods, and a lapse of a reasonable time correctness of the claim or amount of to examine them and ascertain their the lien, but attempts to claim a set-off for goods accepted and used without averring any notice to the plaintiff that the goods were defective and he intended to rescind; or that an offer to return the goods was made. Therefore, under clause (3) of the said section 69 of the said act, he cannot rescind the sale and interpose his alleged set-off in this suit.

As was said by Rice, P. J., in the case of Close v. Hancock, 3 Pa. Supr. 207211, "A deduction or set-off alleged in an affidavit of defence must, in order to be

quality, the buyer will be deemed to have accepted them, unless he then promptly exercised his right to reject them. This right must be exercised not only promptly but unequivocally:" Baltimore Brick Co. v. Coyle, 18 Pa. Supr. Ct., 186, 190-191.

An affidavit is insufficient which fails to show that the defendant exercised the right to rescind and the actual time at which he gave notice of rescission, although he may have notified plaintiff immediately of the discovered inferiority of

the goods: Dunn v. Pittsburgh Jewelry Mfg. Co., 43 Pa. Supr. Ct. 551.

attempts to repudiate; and in such case, it

need not be averred nor proved that the inducing promise was omitted from the note

by fraud, accident or mistake.

The principle that "where the price of goods is fixed by a contract and the quantity and grade are furnished and ac-show that the note was given without con

Where, in an action against the maker of a promissory note, the evidence tends to sideration for the accommodation of the payees, the plaintiffs in the action, the quesjury, and judgment for the plaintiff non obstante veredicto can not be entered.

tion of the defendant's liability is for the

cepted without complaint, the buyer must pay the price, even though the quality be inferior" Louis Werner Saw Mill Co. v. Ferree, 201 Pa. 405; and "Where the power to inspect exists, and he neglects. Motion for judgment for the plaintiff to exercise his privilege, or by agreement. o. v., in J. Walter Schlough and Maror conduct waives the right, he cannot tin W. Schweitzer v. John R. Yetter, No. complain: Field v. Descalzi, 276 Pa. 230.49, April Term, 1923, in the Court of Analyzed under these principles, the Common Pleas of York Co., Pa. Redefendant's affidavit of defence is not sufficient to prevent the plaintiff from taking judgment, because:

There is no averment that the alleged defective doors or unused lumber were returned or offered to be returned to the plaintiff;

There is no averment that any notice was given plaintiff of any defect in the doors, or when such notice was given;

There is no denial that the doors were received and used by defendant;

fused.

Stewart & Gerber, for plaintiffs.

Niles & Neff, for defendant.

Ross, J., September 29th, 1924.-The above case was tried by a jury, which rendered a verdict for the defendant.

The plaintiffs' counsel made a motion for a new trial and a rule to show cause was duly granted thereon. At the same

The alleged set-off claimed by the de- time, a motion to enter judgment for the fendant is inconsistently stated.

And now, December 29th, 1924: Rule for judgment for want of a sufficient affidavit of defence made absolute. Judgment may be entered sec. reg.

Want of consideration --Suffi ciency of evidence to establish defenseQuestion for jury.

A total or partial want or failure of con

sideration for a promissory note may be insisted upon as a defense between any of the

original parties to the note.

plaintiffs, n. o. v., was filed. At the time the rule for new trial was to be argued, the following paper was filed:

"To the Honorable N. Sargent Ross, Presiding Judge:

"The above named plaintiffs, by their counsel, Stewart & Gerber, hereby withdraw the motion for a new trial filed in the above mentioned case, and request the court to dismiss the same and the rule granted thereon.

"Stewart & Gerber,

"Attys, for Plaintiffs,
"April 14, 1924."

The brief filed by the learned counsel for plaintiffs is based upon the same theory which pervaded the entire trial. The suit was brought upon a promissory note for $1300.00, signed by the defendant, dated at York, Pa., April 8, 1922, payable An accommodation note is one to which at the City Bank of York, Pa., in ninety the accommodating party put his name, days from date, to the order of the plainwithout consideration, for the purpose of accommodating some other party who is to tiffs. The endorsements on the back of use it and is expected to pay it; and between the note were: "Utility Feed Machines these parties the consideration may be Co., C. J. Martin, Mgr.," "J. Walter Schlough," "Martin W. Schweitzer."

shown to be wanting.

in a suit on a promissory note, between the original parties, one party thereto may defend upon the ground that he was induced to sign by reason of a promise which the other made and, in the suit,

The plaintiffs' claim was that "the said (defendant) John R. Yetter failed to pay the said note to the plaintiffs at the ma

turity thereof, according to terms, and as between them and me was and would be considered as their debt and not mine, and that if I would sign it they would pay it and relieve and indemnify me from any and all liability, payment or loss thereon."

* *

the same was duly protested for non-
payment.'
"That there is due and owing to the
plaintiffs *
the sum of thirteen
hundred dollars, with interest from July
7, 1922, the date of maturity of said
note."

"Relying upon said representations and promises of plaintiffs, I signed said note.'

The affidavit of defense admitted the signing of the note, but denied that he owed any money on said note, and avers that he signed it "wholly for the accommodation of the plaintiffs, without any consideration therefor, and without re-promise made by plaintiffs. ceiving any benefit or part thereof or therefrom, and upon the covenant and agreement by plaintiffs that if I (defendant) would sign said note for their accommodation and use, they would recognize and consider the same as their debt and not mine, and would pay the same at maturity, and save and keep me harmless and free from any obligation, payment or

the note in the preceding paragraph menParagraph sixth avers, in effect, that tioned matured January 8, 1922, and was renew under practically the same

loss."

The affidavit of defense further stated the circumstances under which this

In paragraph seven of the affidavit, the defendant avers that the plaintiffs paid $200 on the note, and it was renewed for $1300, on April 8, 1922, in the same way; the plaintiffs stating "that they could not pay the whole of the said $1500 note due April 9, 1922, but that they could pay $200 thereof, and if I would again accommodate them by signing another note for $1300, they could get it discounted and with the proceeds settle or renew the maturing note. Plaintiffs again assured me that the said maturing note was their debt and not mine, and that they proposed to pay it, but wanted a little time, their accommodation for $1300, they and that if I would again sign a note for would pay it at maturity and would protect me from all payment, loss or liability on that account.'

agreement was made. In the fifth para-me
graph of the affidavit, the defendant
avers: "On or about October 21, 1921, J.
Walter Schlough and Martin W.
Schweitzer, the plaintiffs, requested me
to assist them and the Utility Feed Ma-
chines Company, in which they were in-
terested and were officers and directors,
to obtain credit at the City Bank of York,
Pennsylvania, as accommodation to the
plaintiffs, and for the benefit of them and
the said company."

"Plaintiffs requested me to sign as maker a note for $1500, dated October 10, 1921, payable ninety days after date, and stated that if I would do so, they could get it discounted at the City Bank and therewith settle or renew a past due note for the same amount held by the said bank, which the said company was under obligation to pay, and which said plaintiffs had promised to pay."

"Plaintiffs said that they would guarantee me against any liability and that I should not lose a cent if I signed said note for them and for their accommodation and benefit, and in order that they might get it discounted at said bank, in order to meet or renew said obligation and obtain credit for the said company.

"Plaintiffs promised me that said note

The theory of the plaintiffs seems to be that the defense was an effort to vary or re-form a written contract, i. e., a written promise by the defendant to pay to the plaintiffs, and that, in order to do that, the evidence would have to be such as would prove a mistake, accident or fraud, and the limit of proof would have to be by at least two disinterested, credible witnesses who would give clear, precise and indubitable evidence before it can be permitted to overcome the documentary proof to which it is opposed.

It will be observed that the issue raised by the pleadings was, first, the alleged want of consideration, and, second, a contemporaneous agreement between the parties, the inducing cause of the defendant's execution of the note.

At the trial, the plaintiffs proved the execution of the note by the defendant, then put the note in evidence, and rested.

Martin Schweitzer, one of the plaintiffs, testified in rebuttal, on page 43, stenographer's transcript, on cross-examJ. Walter Schlough, one of the plain-ination: "A. Well, I understood that tiffs, was then called by plaintiffs' attorneys, and testified in contradiction of defendant's evidence as to the parol agreement alleged and sworn to by de

"Q. You knew, didn't you, that your company had sent you over there to pay it, in accordance with an agreement with "Q. Mr. Schlough, you were at Yet-him? A. Not to pay the note, but to proter's shoe-shop in York, were you not? tect Mr. Yetter. That was the underA. No, sir." standing that I went on the note."

there." "By the Company." "Utility that, in January, the company paid two

“Q. You were an officer of the Com- at the City Bank. Is that correct, or do pany, were you not? A. Yes, sir." "Ayou know anything about it? A. I think the company paid; I am not positive about that.'