Rakestraw v. Woodward , 25 Pa. Super. 165 ( 1904 )

Opinion by

Oklady, J.,

This suit is founded on a promissory note made by the defendant to the plaintiffs’ order, dated January 1, 1900, due one year after date, for the sum of $290, with interest, etc.

The affidavits of defense, which were held by the court below to be sufficient to prevent a judgment, allege that the note was given in settlement of a bill for fruit trees purchased by the defendant and which the plaintiffs expressly agreed would be “ true to name as represented,” that they were not “ true to name as represented,” but were of a comparatively worthless variety, by reason of which known deceit and misrepresentation the defendant suffered damage in a larger amount than the plaintiffs’ demand, which is claimed as a set-off.” By the affidavits it is distinctly stated that the distinctive variety of the trees would be exclusively known to the seller, and his misrepresentation was the controlling -reason for the purchase. There was as prompt a notice of the defense as could have been given, and the plaintiffs’ request “ to leave them standing for another season to see if they would not do better ” was in their interest as much as the defendant’s. The defendant wanted trees of a specified kind, these he had a right to have before being obliged to pay, and these the plaintiffs agreed to furnish. The controverted facts are set out with sufficient precision to pass the case to a jury for its determination. The measure of damages need not be passed upon as the case is now presented, inasmuch as the rule for which the plaintiffs contend is not applicable under the facts disclosed by the record. The mere difference in market value of young fruit trees, without considering loss of time, use of land, and other elements, would not be the true guage to determine the damages sustained.

It is urged that the damages claimed are too uncertain, remote and speculative to be definitely compensated, and cannot be considered. Taking the affidavits together, the necessary inference is that the plaintiffs knowingly failed to furnish the kind and quality of trees required by the contract. The fact that some of' them grew and were true to name might tend to minimize the amount of damages sustained, and might reasonably furnish a standard of value of the whole orchard if all. the trees had been of like kind, but this would depend upon other items of proof not necessary to consider here.

Many authorities might be cited which hold that the damages claimed as a set-off must be direct and capable of being ascertained by some known legal standard, such as are the natural, necessary and immediate result of, and directly traceable to the breach; such as might be properly deemed to have been stipulated for and in contemplation of the parties when the contract was entered into; and such as may be ascertained with approximate' accuracy. See Wade v. Haycock, 25 Pa. 382; Adams Express Co. v. Egbert, 36 Pa. 360; Fleming v. Beck, 48 Pa. 309; Wolf v. Studebaker, 65 Pa. 462; Kinports v. Breon, 193 Pa. 309.

As stated in Andrews v. Blue Ridge Packing Co., 206 Pa. 370, “ an affidavit of defense should set forth fully and fairly facts sufficient to show prima facie a good defense, and if it fails to do so, either from omission of essential facts, or manifest evasiveness in the mode of statements, it will be insufficient to prevent judgment. But if not deficient in either of these respects, and on its face fairly setting forth a prima facie defense, it is not to be subjected to as close a technical examination as if it was a special plea demurred to. Its office is to prevent a summary judgment, and for that purpose a showing of a defense with certainty to common intent is sufficient.” The only question before us is the sufficiency of the affidavits, and it is not necessary to point out in advance the rule by which the damages should be measured ; that question will arise on the trial of the case, and will depend upon the evidence produced in support of the defendant’s contention. See Dixon-Woods & Co. v. Phillips Glass Co., 169 Pa. 167; Miller v. Wilkes-Barre Gas Co., 206 Pa. 254; Wallace v. Penna. R. R. Co., 52 L. R. A. 33, and notes; Wells v. National Life Association, 53 L. R. A. 33, and notes.

For reasons above given defendant is entitled to atrial.

The appeal is dismissed.