Opinion
December 2, 1931.
January 5, 1932.
Replevin — Question of title — Set-off for damages — Breach of warranty — Conditional sale contract — Practice, C. P.
In an action of replevin the question involved is one of title only. In such a proceeding, the defendant cannot assert set-off, nor can he claim recompense for damages sustained from a breach of warranty or misrepresentation of quality.
Argued December 2, 1931.
Before FRAZER, C. J., WALLING, SIMPSON, KEPHART, SCHAFFER, MAXEY and DREW, JJ.
Appeal, No. 282, Jan. T., 1931, by defendants, from order of C. P. No. 5, Phila. Co., June T., 1930, No. 12274, making absolute rule for judgment for want of a sufficient affidavit of defense, in case of Goss Printing Press Co. v. Daniel G. Redmond, individually, and trading as the Milo Publishing Co. Affirmed.
Replevin for printing press.
Rule for judgment for want of sufficient affidavit of defense. Before ALESSANDRONI, J.
The opinion of the Supreme Court states the facts.
Rule absolute. Defendant appealed.
Error assigned, inter alia, was order, quoting record.
Charles G. Gartling, for appellant.
Cecil P. Harvey, of Horenstein, Feldman Harvey, for appellee, were not heard.
Plaintiff sued in replevin and the court below made absolute a rule for judgment for want of sufficient affidavit of defense. Defendant appeals.
The action was brought to recover possesion of a printing press delivered to defendant under a conditional sales contract, defendant having defaulted in payments specified in the agreement. The affidavit of defense set up a counterclaim, asserting breach of an express warranty and consequent damages in excess of the amount due, nothing more. Under these circumstances, the court below correctly entered judgment for plaintiff. The law is well established that in actions of replevin "the question involved is one of title only. In such a proceeding, the defendant cannot assert a set-off . . . . . . nor can he claim recompense for damages sustained from a breach of warranty or misrepresentation of quality": Lee-Strauss Co. v. Kelly, 292 Pa. 403, 406. See also Bentz v. Barclay, 294 Pa. 300, 307, and cases there cited.
The judgment is affirmed.