Opinion
October 15, 1931.
November 11, 1931.
Appeals — Affidavit of defense — Refusal of judgment for want of sufficient affidavit of defense — Practice — Superior Court.
On an appeal from an order discharging a rule for a Judgment for want of a sufficient affidavit of defense, if the appellate court cannot say that it Is clear and free from doubt, that the court below erred in refusing the judgment, it will not disturb the order.
Appeal No. 362, October T., 1931, by plaintiff from judgment of M.C., Philadelphia County, August T., 1930, No. 664, in the case of Thomasville Chair Company v. S. Newman.
Before TREXLER, P.J., KELLER, LINN, GAWTHROP, CUNNINGHAM and BALDRIGE, JJ. Affirmed.
Rule for judgment for want of sufficient affidavit of defense. Before CASSIDY, J.
The facts are stated in the opinion of the Superior Court.
The court discharged the rule. Plaintiff appealed.
Error assigned, was the order of the court.
Meyer Emil Maurer, and with him Hirschwald, Goff and Davis, for appellant.
Herman Steerman, and with him Isidor Ostroff and William Nicholas, for appellee.
Argued October 15, 1931.
The plaintiff brought suit to recover for goods sold and delivered to the defendant. The articles consisted almost entirely of parts of furniture, such as seats for chairs, posts, panels, etc. The affidavit of defense stated that the goods sent by the plaintiff were in exchange for goods previously ordered by the defendant and which had been paid for in full and returned, and according to the customary dealings of the parties, as well as the custom of the trade, the seller and manufacturer were required to re-upholster the mismated chairs or send the necessary parts to repair the damage. The defendant attached to his affidavit a list of the goods which had been returned to the plaintiff.
The lower court was of the opinion that an opportunity should be given the defendant to establish by testimony the alleged custom and usage between the parties and to develop the facts set forth by him in his affidavit. The case is not so clear as to require our intervention. "It is only when the right to relief is clear assuming the facts set forth by the defendant to be true that we will reverse": Sipp v. Phila. Insurance Co., 293 Pa. 292.
The order is affirmed.