American Watch Tool Co. v. Reed Manufacturing Co. , 18 Pa. Super. 24 ( 1901 )

Opinion by

William W. Porter, J.,

The statement of claim sets forth that the plaintiffs made, pursuant to contract by correspondence, certain punchers and dies fitted to a No. 3 Stiles & Parker Press, which were delivered to the defendants and accepted by them. This action is brought for the price. To the statement, in addition to the correspondence relating to the contract, was appended other correspondence by mail and by wire, which the defendants complain was not properly a part of the pleading (because anticipatory of a possible defense) and of which the court below took cognizance in entering judgment for want of a sufficient affidavit of defense. It may be admitted that some part of this correspondence had no proper place in the statement; but it was necessary to the defendants to show by their affidavit that they had not accepted the machinery furnished and that they had given notice to the plaintiffs of the nonacceptance. The affidavit admits the delivery of the machinery and an attempt on their part to use it. It does not aver that the defendants promptly tendered a delivery back. It does aver, in general terms, that the machinery was not accepted. It avers that notice was sent to the plaintiffs of a nonacceptance. At this point the affidavit refers to a telegram which was sent to the plaintiffs in these words: “ Dies not fitted to our press: see Bliss catalogue, page sixty-three.” This telegram is a part of the correspondence appended to the statement. Had it not been so appended, the defense in support of their affidavit and in order to show that some notice of nonacceptance was given, would have been driven to a reference to it in their affidavit. They rely on this telegram to show notice of nonacceptance. But, shutting our eyes to the balance of the correspondence, we cannot agree that proper notice of nonacceptance was contained in this telegram, which was the only notice given. In terms it is a complaint that the machinery was not satisfactory, but it was not a notice that the defendants declined to accept and was not an offer to return the machinery. The affidavit shows that the machinery was never in fact redelivered and remained up to the time of the filing of the affidavit in the possession of the defendants. Under these circumstances, we think the affidavit insufficient. Omitting to return the machinery or to give notice of nonacceptance within a reasonable time, debarred the defendants from a defense in an action for the price. They could not both hold the machinery and refuse to pay for it: Dailey v. Green, 15 Pa. 126.

The court below allowed a credit to the defendants of $45.00, which, by one of their own letters, .appears to be the amount required to adapt the machinery to the purpose required by the defendants. As this credit enures to the advantage of the defendants it cannot be made here the subject of complaint. We have not been convinced by the able argument of counsel for the defendants that error was committed in the action taken by the court below.

The judgment is, therefore, affirmed.