Thomas v. O'Donnell , 183 Pa. 145 ( 1897 )

Opinion by

Mb. Justice McCollum,

In this case the plaintiffs obtained a rule to show cause why judgment should not be entered for want of a sufficient affidavit of defense. On the hearing of the rule it was discharged and from the order discharging it this appeal was taken.

The suit is on a claim filed by the plaintiffs for the balance alleged to be due to them on their contract with the defendant to build for him a house in accordance with the plans and specifications furnished or to bo furnished by Henry Miller, architect, and to finish and deliver the same to him on or before May 25, 1896, “ free and discharged from all claims, liens and charges whatsoever.” In the affidavits filed by the defendant his grounds of defense to their claim were specified as follows: 1. The house was not built according to the plans and specifications. 2. In addition to their claim for the unpaid balance of the contract price there were three other claims filed against the building for services rendered and materials used in the construction of it. The departures from the specifications and the defects in the work were specified but the allowance or deduction claimed on account of them were not stated. The defective work and the noncompliance with the specifications, considered by themselves, appear to have been regarded by the learned judge of the court below as insufficient to prevent judgment because of the failure of the defendant to state the amount of the resultant damage, hut he obviously thought that he ought not to enter judgment for the balance of the contract price while the claims filed by the mechanics and materialmen were unsatisfied. Iir view of the averments in the affidavits of defense and of the stipulations in the contract in regard to liens and the completion of the building, we cannot say that he erred in discharging the rule for judgment. The order discharging the rule is therefore affirmed.