
    JOHNSTON vs. SANGER.
    An affidavit of defense that the goods were inferior in quality and did not arrive in time is insufficient if the defendant received and accepted the goods.
    Error to Common Pleas of Berks County. No. 207, January Term, 1883.
    The affidavit of defense in this case was as follows:
    
      Henry Johnston, of the firm of Adam Johnston & Son, the defendants in the above suit, being duly sworn according to law, deposes that they have a just and legal defence to the whole of the plaintiffs’ claim, the nature and character of which is as follows:
    The defendants having entered into a contract with the Little-Rock, Mississippi and Texas Railway Company, in the summer of 1881, for the construction of a number of house cars, contracted with the plaintiffs for the purchase and delivery to them at Reading of about 80,000 feet of white pine lumber suitable for use in the building of said cars; that the lumber was to be of different sizes but similar in character and quality, to a sample lot (about 500 feet) which the plaintiffs had some time-previously shipped to the defendants, and to be shipped at once so that defendants should not be delayed in the building of the cars aforesaid; that the plaintiffs, instead of shipping the lumber promptly as the defendants had a right to expect, greatly delayed the shipments, so that the defendants were obliged to-procure lumber elsewhere, to wit, from Williamsport, where-they purchased 30,000 feet of similar lumber in order to fulfill their contract with said railroad company.
    This deponent further says that notwithstanding the supply received from Williamsport, and depending upon the prompt delivery, of the lumber from the plaintiffs according to their contract, they were unable to complete the construction of the-cars in the time provided by their contract with said railroad company, and that owing to the delay in furnishing the cars the-said railroad company refused to accept twenty or more cars, and the same were left upon defendants’ hands, whereby the defendants sustained a loss of over $1,700, being obliged to sell the rejected cars, 22 in number, for $490 a piece instead of $575) which they were to get from said railroad company, the delay in the building of said cars being mainly due to their being without material for building them, which should have been furnished them in time by the plaintiffs according to their contract.
    The defendants further aver that the greater part of the lumber furnished by the plaintiffs was not according to the sample lot, but was greatly inferior in quality, and such as was not suitable for the building of house cars; that instead of being worth from $32 to $36.50 per thousand, it was not worth $26; that owing to inferior character of the lumber, and their delay in furnishing the same, they have still on hand over fifty thousand feet of the lumber sent them by plaintiffs which they have been unable to use or sell, although they have repeatedly ■offered it for $25 a thousand.
    The deponent further avers that the contract price of the lumber contracted for being from $32 to $36.50 per thousand .amounted in the aggregate to about $3,400; that they have paid the plaintiffs about $2,800, leaving less than $600 still due at ■contract price; and that owing to the poor quality of the lumber and the delay in shipment, the defendants have sustained a loss of over $2,000, and that they have already paid to plaintiffs much more than they are legally and justly entitled to receive for the lumber furnished by them as aforesaid. All which these defendants aver to be true, and expect to be able to prove at the trial of the above cause. HENRY JOHNSTON.
    The Court entered judgment in favor of the plaintiff for want of a sufficient affidavit of defence in the following opinion, per:
    Sassaman, J.
    The affidavit of defence in this case alleges that there was ■delay in the delivery of the lumber contracted for, and that the ■defendants were obliged to buy lumber elsewhere. This would be an element of damage, which would be available in defence to the action, if the allegation of delay was that a higher price had to have been paid for the lumber purchased in view of that ■not delivered according to contract. Without an allegation of such difference in price suffered, such allegation of delay would "be insufficient to defeat the action of the plaintiff.
    Again the affidavit of defense alleges that the lumber delivered was inferior to the sample lot delivered after which it was purchased. It does not, however, allege that the defendants would not or did not accept the lumber on delivery, by reason of its inferiority. The acceptance by them on delivery fixes their liability, unless there had been some deceit practiced whereby they were misled into an acceptance under disadvantageous circumstances. The affidavit does not seem to be sufficient on any of the grounds of defence set out. Rule made absolute.
    Johnston & Son then took a writ of error, complaining of the entry of the judgment against them.
    
      A. G. & H. D. Green, Esqs., for plaintiffs in error,
    argued that the loss occasioned by the non-delivery of the lumber is a proper set-off; Collins vs. Baumgardner, 52 Pa., 461; Billmeyer vs. Wagner, 91 Pa., 92; McHose vs. Fulmer, 73 Pa., 367.
    
      I. Hiester, Esq., contra,
    
    argued that speculative damages are not allowed; Fessler vs. Love, 48 Pa., 407; Edgar vs. Boies, 11 S. & R., 445; Billmeyer vs. Wagner, 91 Pa., 95; Hadley vs.. Baxendale, 9 Exch., 341.
   The Supreme Court affirmed the judgment of the Common Pleas on March 12th, 1883, in the following opinion:

Per Curiam.

This affidavit is clearly insufficient. There is no distinct averment that the defendant in error had any knowledge of the existence of the contract with the Little Rock, Mississippi & Texas Railway Company. It is not alleged that the plaintiffs in error paid a higher price for the lumber, nor that they did not accept the lumber furnished by, defendants in error. The entire omission of these facts leaves the affidavit radically defective to defeat a recovery.

Judgment affirmed.  