
    Wilson v. Phœnix Iron Company.
    
      Practice, C. P.—Affidavit of defense—Contract.
    
    In an action for goods sold and delivered, an affidavit of defense is sufficient, which avers that plaintiff had failed to deliver in the time provided by the contract, certain iron, in consequence of which defendant was compelled to go into the market and purchase iron elsewhere, which it did at an advance of a specified price per ton, and that the loss thus sustained should be set off against plaintiff’s claim.
    Argued Jan. 16, 1901.
    Appeal, No. 294, Jan. T., 1900, by-plaintiff, from order of C. P. No. 2, Pbila. Co., June T., 1900, No. 359, discharging rule for judgment for want of a sufficient affidavit of defense in case of Edward H. Wilson, trading as E. H. Wilson & Company, v. The Phoenix Iron Company.
    Before McCollum, C. J., Fell, Blown, Mestlezat and Pottee, JJ.
    Affirmed.
    Rule for judgment for want of a sufficient affidavit of defense, in action for goods sold and delivered.
    The affidavit of defense was as follows :
    About July 8, 1899, the defendants made a contract with the plaintiff, that he, the plaintiff, should ship them 1,000 gross tons of old iron car wheels for delivery in about equal quantities during the months of July, August and September, 1899, all of the said car wheels to be delivered prior to the end of September, 1899.
    That the said car wheels were not delivered as per the contract during the month of September, and during the first two weeks of October, the defendants were constantly urging the plaintiff to ship the balance of the wheels. That up to the middle of October, only about 545 tons had been delivered, and the defendants then being in urgent need of the balance of the said wheels, and the plaintiff neglecting and refusing to ship the same, the defendants were compelled to go into the market and purchase wheels elsewhere, which they did at an advance in price of $4.75 per ton, which was the market price of the said wheels and which was the lowest price they could obtain them for at that time.
    The defendants claim to offset therefore against the plaintiff’s claim, 445 tons of old car wheels purchased by them at $22.25 per ton, being $4.75 per ton in excess of the contract price, making a total sum of $2,161.25.
    
      Error assigned was the order of the court discharging rule for judgment for want of a sufficient affidavit of defense.
    
      Bernard, Gilpin, for appellant.
    
      John Weaver, with him John SparhawJe, Jr., for appellee.
    February 18, 1901:
   Per Curiam,

In this case a rule was taken for judgment for want of a sufficient affidavit of defense. The court below having on due consideration concluded that the affidavit was sufficient discharged the rule. As it is not clear or certain that ■ the court erred in discharging the rule we must dismiss the appeal.

Judgment affirmed.  