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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 i 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 “Defendants aver that the plaintiff has which appears by a statement marked charged in said item of $788.69 the sum *Exhibit D'hereto attached and made of $12.00 for hauling, which amount in part hereof.

whole or in part is not due and owing by "9. That the total amount of said defendants to plaintiff but is a charge contract is the sum of $2521.66, and the beyond the contract and is not in law total credits on account thereof is the properly chargeable against the defendsum of $1732.97; that the balance due ants and defendants are entitled to a crefrom the owner or reputed owner to the dit of $12.00 for such improper charge. claimant is the sum of $788:69, with in- "Defendants aver that plaintiff has terest thereon from the 26th day of Nov-charged defendants for 26 pieces of lumember, 1923..

ber two inches by six inches by ten feet “10. No part of said balance due has and said pieces of lumber were all too been paid by the owner to the claimant, short for use in the defendant's home although demand has been made for the and the plaintiff in charging the defendpayment of the same; and there are no ants with said lumber made an improper set offs or counterclaims thereagainst.” charge and illegal in that said lumber was

The affidavit of defence is as follows: not useable. The price charged by plain

"Norman C. Julius and M. L. McMil-tiff against defendants was $10.40. lan, defendants above named, hereby file “Defendants aver that said items agtheir affidavit of defence to the scire gregating $195.40 are not owing by defacias in the above entitled action as filed fendants to the plaintiff in whole or in and aver that they have a defence in law part. All of which defendants aver they and in equity to part of plaintiff's claim, will prove on the trial of this cause." the nature and character whereof is as The first reason advanced by plaintiff's follow'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 off is not pleaded with sufficient certainagreed for an extra price of $100.00 for ty under the rules of law. a change in doors, the changed doors to As we have before observed, we think be the same style and dimensions as the this reason must be sustained. doors in the Haines Building at Market It will be observed that the defence and Duke Streets, York, Pa., but de- advanced with reference to the doors is fendants aver that the said doors were an alleged breach of warranty. not constructed on the same style and It will also be observed that the affidadimensions as the Haines doors but were vits, in effect, admit that the doors relighter in weight and of a thinner ma-ferred to were accepted by defendant and terial, and plaintiff not having construct- used in the building, but it does not set ed the said doors as contracted for, the forth when the discovery was made of price payable for the said doors are the the alleged defects; that the defendant same in the original contract between the gave plaintiff notice thereof at any time. parties, to wit: $100.00 less than the The defendants admit that the price amount sought to be collected by plain-was $100. more than originally contracttiff from defendants.

ed for, but claim that the doors were not “Defendants aver that the contract be the same quality as ordered, and that tween plaintiff and defendants all lum- therefore defendant is entitled to an offber unused in said building would be ac- set of $100; that the price payable for cepted by the plaintiff and credit given said doors is the same as the original on the contract. Defendants aver that contract between the parties, to wit, $100 less than the amount sought to be col- of any avail, be stated with precision and lected by the plaintiff from the defend- exactness as to the amount, and the court ant.

must be left in no doubt as to its source There is nothing in the affidavit of de- and character, so as to be able to judge fence which indicates that the defendant of the propriety of its allowance against returned or offered to return the unused the plaintiff's claim." See also the cases lumber referred to, or the 26 pieces of of Port Kennedy Slag Works v. William lumber alleged to be “too short for use," Krauser & Sons, 5 Pa. Supr. Ct., 622or what the unused lumber was to be 625, and Elzea v. Brown, 59 Pa. Supr. used for.

Ct. 403-407 These, and other defects in the affida- It will be observed that the mentioned vit of defence, are pointed out by the items in the claim of set-off are, $100. counsel for plaintiff, in support of the for defect in doors; $14 for "unused" motion for judgment for want of a suffi- lumber; $12 for hauling and $10.40 for cient affidavit of defence.

"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 (a) Accept or keep the goods, and set adds to the general uncertainty of the deup against the seller a breach of warran- fence as stated in the affidavit. ty by way of recoupment in diminution The general rule, as stated by Mr. Jusor extinction of the price;

tice McCullum, in the case of Class v. (b) Accept or keep the goods, and Kingsley, et al., 142 Pa. 636, 639, is that maintain an action against the seller for the affidavit must contain all the facts damages for breach of warranty; necessary to make a legal answer to the

(c) Refuse to accept the goods, if the claim, and that their omission cannot be property therein has not passed, and supplied by possible inferences from maintained an action against the seller facts which are stated.” for damages for breach of warranty; In the case at bar, there is nothing to

(d) Rescind the contract to sell or the indicate that the defendant complied with sale and refuse to receive the goods, or, the requirements of the Sales Act. There if the goods have already been received, is no averment that the alleged defects return them or offer to return them to in the doors were pointed out to the the seller, and recover the price or any plaintiff, or that the defendant at any part thereof which has been paid.” time rejected them, or that there was any

The argument of the plaintiff's coun- notice given or attempt made to return sel is that “The Sales Act defines the any of the articles or things which the rights and remedies of the buyer, but in defendant now seeks to off-set against the administration of those remedies, he the plaintiff's claim, under an undenied must comply with all the requirements of contract. the law applicable to contracts.”

“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 quality, the buyer will be deemed to have for goods accepted and used without accepted them, unless he then promptly averring any notice to the plaintiff that exercised his right to reject them. This the goods were defective and he intend-right must be exercised not only prompted to rescind; or that an offer to return ly but unequivocally:" Baltimore Brick the goods was made. Therefore, under Co. v. Coyle, 18 Pa. Supr. Ct., 186, , clause (3) of the said section 69 of the 190-191. said act, he cannot rescind the sale and An affidavit is insufficient which fails interpose his alleged set-off in this suit. to show that the defendant exercised the

As was said by Rice, P. J., in the case right to rescind and the actual time at of Close v. Hancock, 3 Pa. Supr. 207- which he gave notice of rescission, al211, “A deduction or set-off alleged in an though he may have notified plaintiff imaffidavit of defence must, in order to be' mediately of the discovered inferiority of

for the

the goods: Dunn v. Pittsburgh Jewelry attempts to repudiate; and in such case, it Vfg. Co., 43 Pa. Supr. Ct. 551.

need not be a verred nor proved that the in

ducing promise was omitted from the note The principle that “where the price of by fraud, accident or mistake. goods is fixed by a contract and the Where, in an action against the maker of quantity and gradle are furnished and ac

a promissory note, the evidence tends to

show that the note was given without concepted without complaint, the buyer must sideration for the accommodation of the pay the price, even though the quality be payees; the plaintiffs in the action, the quesinferior” Louis Werner Saw Mill Co. v. jury, and judgment for the plaintiff non ob

tion of the defendant's liability is Ferree, 201 Pa. 405; and "Where the stante veredicto can not be entered. power to inspect exists, and he neglects

Motion for judgment for the plaintiff to exercise his privilege, or by agreement or conduct waives the right, he cannot in W. Schweitzer v. John R. Yetter, No.

n. 0. V., in J. Walter Schlough and Marcomplain: 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

fused. sufficient to prevent the plaintiff from taking judgment, because:

Stewart & Gerber, for plaintiffs. There is no averment that the alleged defective doors or unused lumber were

Viles & Neff, for defendant. returned or offered to be returned to the plaintiff ;

Ross, J., September 29th, 1924.— The There is no averment that any notice

above case was tried by a jury, which

rendered a verdict for the defendant. was given plaintiff of any defect in the doors, or when such notice was given;

The plaintiffs' counsel made a motion

for a new trial and a rule to show cause There is no denial that the doors were

was duly granted thereon. At the same received and used by defendant;

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

plaintiffs, n. 0. V., was filed. At the time

the rule for new trial was to be argued, And now, December 29th, 1924: Rule the following paper was filed : for judgment for want of a sufficient affidavit of defence made absolute. Judg- Presiding Judge:

"To the Honorable X. Sargent Ross, ment may be entered sec. reg.

"The above named plaintiffs, by their counsel, Stewart & Gerber, hereby with

draw the motion for a new trial filed in ('. P. of

York Co,

the above mentioned case, and request Schlough et al v. Yetter the court to dismiss the same and the

rule granted thereon.

"Stewart & Gerber, Promissory notes --- Accommodation

“Attys. for Plaintiffs, maker - Il’ant of consideration -- Suffi

"April 14, 1924." ciency of evidence to establish defense

The brief filed by the learned counsel

for plaintiffs is based upon the same theQuestion for jury:

ory which pervaded the entire trial. The A total or partial want or failure of con

suit was brought upon a promissory note sideration for a promissory note may be in- ; for $1300.00, signed by the defendant, sisted upon as a defense hetween any of the dated at York, Pa., April 8, 1922, payable original parties to the note. An accommodation note is one to which

at the City Bank of York, Pa., in ninety the accommodating party

put his

name, I days from date, to the order of the plain

1 without consideration, for the

tiffs. The endorsements on the back of accommodating some other party who is to use it and is expected to pay it; and between the note were: “Utility Feed Machines parties

consideration be Co., c. 1. Martin, Mgr.," "J. Walter shown to be wanting.

Schlough,” “Martin W. Schweitzer." in a suit on a promissory note, between the original parties, one parts thereto may The plaintiffs' claim was that “the said defend the ground

was (defendant) John R. Yetter failed to pay sign by ise which the other made and, in the suit, the said note to the plaintiffs at the ma

purpose

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turity thereof, according to terms, and as between them and me was and would the same was duly protested for non- be considered as their debt and not mine, payment."

and that if I would sign it they would “That there is due and owing to the pay it and relieve and indemnify me from plaintiffs

the sum of thirteen any and all liability, payment or loss hundred dollars, with interest from July thereon.” 7, 1922, the date of maturity of said

"Relying upon said representations note.”

and promises of plaintiffs, I signed said The affidavit of defense admitted the note.” signing of the note, but denied that he owed any money on said note, and avers the note in the preceding paragraph men,

Paragraph sixth avers, in effect, that that he signed it "wholly for the accom- tioned matured January 8, 1922, and modation of the plaintiffs, without any was renew under practically the same consideration therefor, and without re-promise made by plaintiffs. ceiving any benefit or part thereof or therefrom, and upon the covenant and

In paragraph seven of the affidavit, the agreement by plaintiffs that if I (defend- defendant avers that the plaintiffs paid ant) would sign said note for their ac- $200 on the note, and it was renewed for commodation and use, they would

$1300, on April 8, 1922, in the same way;

recognize and consider the same as their debt the plaintiffs stating that they could not and not mine, and would pay the same at pay the whole of the said $1500 note due maturity, and save and keep me harmless April 9, 1922, but that they could pay and free from any obligation, payment or $200 thereof, and if I would again acloss."

commodate them by signing another note The affidavit of defense further stated

for $1300, they could get it discounted the circumstances under which this

and with the proceeds settle or renew the agreement was made. In the fifth para

maturing note. Plaintiffs again assured graph of the affidavit, the defendant me that the said maturing note was their graph of the affidavit, the defendant debt and not mine, and that they proavers : "On or about October 21, 1921, J. Walter Schlough and Martin W.

posed to pay it, but wanted a little time, Schweitzer, the plaintiffs, requested me

and that if I would again sign a note for to assist them and the Utility Feed Ma- their accommodation for $1300, they to assist them and the Utility Feed Ma- would pay it at maturity and would prochines Company, in which they were interested and were officers and directors,

tect me from all payment, loss or liabil

. to obtain credit at the City Bank of York, ity on that account.' Pennsylvania, as accommodation to the The theory of the plaintiffs seems to plaintiffs, and for the benefit of them and be that the defense was an effort to vary the said company."

or re-form a written contract, i. e., "Plaintiffs requested me to sign as written promise by the defendant to pay maker a note for $1500, dated October to the plaintiffs, and that, in order to do 10, 1921, payable ninety days after date, that, the evidence would have to be such and stated that if I would do so, they as would prove a mistake, accident or could get it discounted at the City Bank fraud, and the limit of proof would have and therewith settle or renew a past due to be by at least two disinterested, crednote for the same amount held by the ible witnesses who would give clear, presaid bank, which the said company was cise and indubitable evidence before it under obligation to pay, and which said can be permitted to overcome the docuplaintiffs had promised to pay.”

mentary proof to which it is opposed. "Plaintiffs said that they would guar- It will be observed that the issue raised antee me against any liability and that I by the pleadings was, first, the alleged should not lose a cent if I signed said want of consideration, and, second, a note for them and for their accommoda- contemporaneous agreement between the tion and benefit, and in order that they parties, the inducing cause of the defendmight get it discounted at said bank, in ant’s execution of the note. order to meet or renew said obligation At the trial, the plaintiffs proved the and obtain credit for the said company. execution of the note by the defendant,

"Plaintiffs promised me that said note then put the note in evidence, and rested.

a

The defendant was sworn in his own to the company's promise to Yetter? A. behalf, and gave evidence which practic- No, sir." (See stenographer's tranally amounted to the defense set forth in script, page 30). his affidavit of defense.

On page 32, of stenographer's tranThe defense then called H. S. Weikel, script, the questions were asked and the who testified that he lived at 701 Mad- answers given, as follows: ison Avenue; that he knew J. Walter

"Q. Did Yetter owe you anything? A. Schlough and Martin W. Schweitzer No, sir. (page 21, Stenographer's transcript);

"Q. You never had seen him but once that in October, 1921,

"Dr. Rev.

before, had vou: A. Yes, sir. Schweitzer was vice-president, and J. Walter Schlough was a director" of the

"Q. Once before? A. Once before.”

On page 36, in answer to the crossl'tility Feed Machines Company; "I had

examination of Mr. Niles, the witness formerly been president of the company, Schlough) said: "Well, the reason we but I had handed my resignation in on were here, Ileikel had resigned, and the October 8, 1921, just prior to the affair

bank--we couldn't fix that note up, and here, and they had pigeon-holed it at that

that is the reason we had to come over." time.”

“Q. Your company was to fix it up, After an adverse ruling on an offer wasn't it? A. Well, that I don't know. made by defendant's counsel, the defense rested.' (See stenographer's transcript, tiffs, testified in rebuttal, on page 43,

Martin Schweitzer, one of the plainpages 23, 24, 25 and 26).

Stenographer's transcript, on cross-examJ. Walter Schlough, one of the plain-ination : "A. Well, I understood that titis, was then called by plaintiffs' at that note was in favor of Mr. Yetter, but torners, and testified in contradiction of I didn't know who was to pay the note. defendant's evidence as to the parol

"Q. You knew that he was not to pay agreement alleged and sworn to by deit, didn't you? A. I knew that he was fendant.

the maker, and I supposed that he was to Jr. Niles, of counsel for defendant, pay that note." then cross-examined the witness (see "(. You knew, didn't you, that your stenographer's transcript, page 30) as company had sent you over there to pay follows:

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." "Q. You weren't there in October at

In answer to a question of plaintiff's all? A. October roth."

counsel, as follows (see page 44, stenog“I guess it was October 10th." "Torapher's transcript): sign the first note." “We were sent

“Q

Mr. Yetter testified there.”. “By the Company.” “Utility that, in January, the company paid two Feed Machines Company."

hundred dollars on account of this note "Q. You were an officer of the Com- at the City Bank. Is that correct, or do pany, were you not? A. Yes, sir." "A pou know anything about it? A. I think director."

the company paid; I am not positive

about that." "Q. And you were sent by that l'tility Feed Machines Company to come over Mr. Niles, on cross-examination, “Q.

On page 45, in answer to question by and see Yetter about a $1500 note that. And the two hundred dollars that was was due at the City Bank, weren't you? A. Yes, sir."

paid came from your company, didn't it?

A. Yes, as far as I know; I am not sure.” "Q. And you were told by your com

On page 46, stenographer's transcript, pany to pay that note, weren't you? A. Mr. William Brugger, called by plaintiffs No, sir."

in rebuttal, testified as follows, on direct "Q. Didn't you have in your pocket at examination by Ex-Judge Stewart: that time, either

you Rev.

Mr.

"Q). You are the bookkeeper for the Schweitzer, a $1500 certified check to Utility Feed Machines Company? A. pay that note at the City Bank, according Yes, sir.

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