Opinion
March 9, 1932.
March 21, 1932.
Practice C.P. — Action on book account — Affidavit of defense — Insufficiency — Judgment for want of a sufficient affidavit of defense.
On a rule for judgment for want of a sufficient affidavit of defense in an action of assumpsit on a book account for merchandise sold and delivered to the defendant's service station, the affidavit of defense is insufficient where the defendant avers that during the term covered by the deliveries his service station was in charge of his manager who under the terms of his appointment, was to collect all accounts and pay all bills for supplies.
Appeal No. 19, February T., 1932, by defendant from judgment of C.P., Lackawanna. County, No. 619, May T., 1931, in the case of American Oil Company v. August Walser.
Before TREXLER, P.J., KELLER, GAWTHROP, CUNNINGHAM, BALDRIGE, STADTFELD and PARKER, JJ. Affirmed.
Rule for judgment for want of a sufficient affidavit of defense in an action of assumpsit on a book account. Before NEWCOMB, P.J.
The facts are stated in the following opinion of the court below:
Assumpsit on a merchant's book account for gasoline and oil sold and delivered to defendant on various dates between August 2d and September 22, 1930. The balance claimed is $593.07, with the accrued interest.
The question now is on the sufficiency of the affidavit of defense.
It may be said that it would have looked better had it been signed as well as sworn to. But that omission has not been objected to, and it will be presumed to have been waived.
The trouble with the affidavit is that it only contests the claim because during the time covered by the deliveries defendant says his service station was in charge of his manager; that by the terms of his appointment the manager was to collect all accounts and pay all bills for supplies.
No doubt as between the parties to it that arrangement would be enforcible. But plaintiff company, being a stranger to it, could not be affected by it.
The averment must be adjudged immaterial and irrelevant.
The exceptions are sustained, the rule to show cause is made absolute, and judgment entered for plaintiff in the sum of six hundred three and 93/100 dollars ($603.93).
The court made absolute the rule. Defendant appealed.
Error assigned, among others, was the order of the court.
A.A. Vosburg, and with him A. Floyd Vosburg, for appellant.
Welles, Mumford Stark, and with them W.A. Bissell, for appellee.
Submitted March 9, 1932.
The judgment is affirmed on the opinion of President Judge NEWCOMB of the court below.