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29 Pa. Super. 437

Straus v. Welsh

Superior Court of Pennsylvania

Decided November 20, 1905

Superior Court of Pennsylvania · decided 1905-11-20

Appeal, No. 42, Oct. T., 1905, by defendant, from order of C. P. No. 1, Phila. Co., Dec. T., 1904, No. 1389, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Karl Straus and Adolph Loeb, trading as K. Straus & Company v. Frederick W. Welsh. Assumpsit for goods sold and delivered. Rule for judgment for want of a sufficient affidavit of defense.

Reversed · Decided 1905-11-20

¶1.Opinion by

Morrison, J.,

¶2This was a judgment for want of a sufficient affidavit of defense. The affidavits are not well drawn but they exhibit a substantial defense to $60.00 of plaintiff’s claim.

¶3To distinguish this case, in principle, from Simpson v. Karr, 22 Pa. Superior Ct. 8, and cases there cited, requires a refinement of criticism that we are not disposed to exercise in an endeavor to sustain a judgment for want of a sufficient affidavit of defense. If the affidavit and supplemental. affidavit of defense state facts, and we must now assume that they do, the case should have gone to a jury as to all of the plaintiff’s claim, except $88.00 and interest thereon.

¶4The assignment of error is sustained and the judgment reversed, without prejudice, and a procedendo awarded, with leave to plaintiffs to move for judgment for $88.00, with interest thereon and costs, if they so desire, and they may go to trial for the balance of their claim.

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