
    Hayes & Harris v. Kingston, to use.
    In an action of assumpsit, brought December 6,1887, by Kingston, to the use of another, the plaintiff’s statement claimed to recover the amount, with interest, of two promissory notes, of §100 each, drawn by defendants to the order of Kingston, averring that the plaintiff was the lawful holder and owner of the notes. Copies of the notes were filed with the statement, and an affidavit made by Kingston that “ the matters alleged as a basis of his claim in the suit are just and true to the best of his knowledge and belief.” An affidavit of defense filed alleged that the notes, with six others of like amounts, were given in payment of a car load of roofing paper bought from Kingston for $800, all of which was paid except these two notes; that the sale was made with the express agreement that the paper should be of a quality, as respects its capacity to absorb tar, equal to the sample sent and upon which the order was originally based; that the quality ordered, and which it was agreed this car load should be, would absorb, in the process of saturation, three thousand pounds of tar to every two thousand pounds of paper; that the paper received was so hard and damp that it would not absorb more than two-thirds of what was necessary to make it correspond with the sample, and with the requirements of the trade; that the hardness and dampness were caused by the imperfect method of its manufacture and was not discovered by defendants until they came to saturate it with tar, which was after the payment of the six notes; that the loss by reason of the defective jireparation of the paper was equal to thirty per cent, of its cost, or more than the plaintiff’s claim; “that it does not appear from the plaintiff’s statement how or in what manner the use plaintiff came in possession or acquired an ownership in the notes sued on, but the deponent avers that such possession or ownership was acquired by the said use plaintiff long after the maturity of the said notes, and with full notice of this-defense, and with the intention on the part of the said Kingston to deprive the defendants of the benefit thereof.” The affidavit further suggested that the statement filed did not entitle the plaintiff to judgment because the affidavit was not-by the plaintiff or by any one in his behalf. On a rule for judgment, the defendants contended that the above facts constituted a warranty and breach, sufficient to prevent judgment. Judgment was entered for plaintiff. Held to be error.
    Williams, J. — The affidavit of defense was sufficient. Th% use plaintiff is entitled to stand on no better ground than the payees. He is not averred to be an endorser or purchaser in the usual course of business of the notes sued on; while the defendants distinctly aver in their affidavit that he acquired his-interest in them after maturity and with full notice.
    Jan. 15, 1889.
    Error, No. 8, July T. 1888, to C. P. No. 3 Phila. Co., to review a judgment entered notwithstanding an affidavit of defence, in an action of assumpsit, at Dec. T. 1887, No. 192.
    The action was brought December 6, 1887. The plaintiff’s-statement of claim was for two promissory notes, for $100 each,, dated Play 10, 1881, one due seven months, the other eight months, after date. Copies of the notes were attached, with an affidavit by William Kingston that “the matters alleged, as a basis of his claim in the above suit are just and true to the best of his knowledge and belief.”
    An affidavit of defence by W. S. Harris, one of the defendants,, was as follows:
    “ The notes sued upon were given, together with six other notes of a like date and amount, and payable in one, two, three, four, five and six months, respectively, in payment of a car of roofing-paper purchased by the defendants of the said William Kingston. The said car of rooling-paper was ordered by the defendants of the said William Kingston, to be of a uniform width of thirty-two inches, and to be of a quality equal to a sample sent to-him at the time the order was given. Upon the receipt of the said car of paper, the defendants found that the same was of different widths, varying from twenty-six inches to thirty-two inches, not at all like the sample, and entirely unsuitable for the purposes for which it was ordered. The defendants declined to receive the said paper, and notified the said William Kingston thereof, who thereupon came to this city, and recognizing the justice of the defendants’ position, made efforts to dispose of the same to other parties, but failed to do so by reason of the' same being of different widths, and unsuitable for roofing purposes. The said William Kingston then agreed to sell the said paper to the defendants for the sum of eight hundred dollars, and took therefor the eight notes above referred to; and agreeing that the same should be of the quality of the sample sent him, and upon which the order was originally based. When the defendants came to use the said paper for the purposes for which it was ordered, by saturating the same with tar, it was found that the said paper, by reason of its hardness and damp state, would not absorb the tar, could not be saturated, and was greatly depreciated in value for roofing purposes; which depreciation, upon a sale of the same by the defendants, was ascertained to ,be about thirty per cent., or more than the notes then remaining unpaid, and which are now sued on, amounted to. The hardness of the paper and its damp state was not caused by any act or omission of the defendants, but was caused by the imperfect method of its manufacture, and was not discovered by the defendants until they came to saturate it with tar, which was after the payment of the six notes above referred to. The paper was not up to the standard, or equal to the sample sent the said William Kingston, and by reason thereof the defendants lost thirty per cent, of the value of the whole car, or the sum of two hundred and forty dollars. It does not appear, from the plaintiff’s statement, how or in what manner the use plaintiff came into possession or acquired an ownership in the notes sued on, but the deponent avers that such possession or ownership was acquired, by the said use plaintiff, long after the maturity of the said notes, and with full notice of the defense above set forth, and with the intention on the part of the said William Kingston to deprive the defendants of the benefit thereof.
    “ The deponent further suggests to the court that the statement filed does not entitle the plaintiff to judgment, because it is not sworn or affirmed to by the plaintiff, or by any one in his behalf, but, on the contrary, is sworn to by the said William Kingston, who states that the facts therein alleged as a basis of his claim, are just and true.
    “All of which deponent expects to be able to prove on the trial of the above cause.”
    A supplemental affidavit of defense was afterward filed by Thomas II. Harris, another defendant, as follows: ■
    “ That, at the time the notes now sued on, together with six other notes which have since been paid, were given by defendants to William Kingston, the said William- Kingston agreed and guaranteed that the roofing-paper for which the said notes were given was of a quality, as respects its capacity to absorb tar, equal to the sample which had been sent him, which, the deponent avers, would absorb at least three thousand pounds of tar to every two thousand pounds of paper. That when the defendants came to saturate the said paper with tar, which was after the payment of six of the notes given in payment therefor, it was found that the same, by reason of its hardness and damp state, would not and did- not absorb more than two thousand one hundred pounds of tar to every two thousand pounds of paper, and has depreciated in value or caused a loss to the defendants of about thirty per cent, of the entire purchase price, or more than the notes then remaining unpaid, and which are now sued on, amounted to.
    “ That the hardness of the said paper, and its damp state, were not caused by any act or omission of the defendants, but was caused by the imperfect method of its manufacture, and was not, and could not be, discovered by defendants until they came to saturate it with tar, all of which defendants expect to be able to prove on the trial of the above cause.”
    The court entered judgment for plaintiff, which was assigned for error.
    
    
      Alfred J. Wilkinson, for plaintiffs in error.
    The affidavits of defense disclose and set out an agreement and guarantee, at the time the notes in suit were given, concerning the capacity of the paper to absorb tar. An express promise that a thing shall be or is of a certain quality, is a warranty. 1 Smith’s Leading Cases, notes by Hare and Wallace, part 1, 8th Ed., 335.
    “Any distinct assertion or affirmation of quality made by the owner during a negotiation for the sale of a chattel, which it may be supposed was intended to cause the sale, and was operative in causing it, will be regarded either as implying or as constituting a warranty.” 1 Parsons on Contracts, *580.
    A breach of the warranty is alleged. An. affidavit is sufficient to prevent judgment when it sets forth a substantial prima facie defense. Hugg v. Scott, 6 Wh. 274; Leibersperger v. Bank, 30 Pa. 531; Thompson v. Clark, 56 Pa. 33; Selden v. Neemes, 43 Pa. 421.
    A purchaser, notwithstanding his possession and the opportunity to examine and inspect material purchased, may insist and rely upon an express warranty. Chandelor v. Lopus, 1 Smith’s Leading Cases, notes by Hare and Wallace, part 1, 341, and cases there cited.
    Indeed, it even seems that if the seller warrants against a patent and obvious defect, he cannot rely on the knowledge of the purchaser as a-defense. Pinney v. Andrus, 41 Vt. 631.
    A purchaser need not return the goods in order to avail himself of the defense of a breach of the warranty. Steigleman v. Jeffriess, 1 S. & R. 477; Borrekins v. Bevan, 3 R. 23; Adams v. Rogers, 9 Watts, 121; Kase v. John, 10 Watts, 107.
    The affidavit alleges that ownership of the notes was acquired after their maturity, and with full notice of the defense. The holder of an overdue negotiable note, is in the same position as to it, as the payee from whom he receives it. Clay v. Cottrell, 18 Pa. 408; Marsh v. Marshall, 53 Pa. 396; Long v. Rhawn, 75 Pa. 128; Young v. Shriner, 80 Pa. 463.
    
      No counsel appeared for defendant in error.
    Jan. 28, 1889.
   Williams, J.,

The plaintiff’s claim in this action was upon two promissory notes, payable to the order of Kingston, for one hundred dollars each. The court below entered judgment in favor of the plaintiff for want of a sufficient affidavit of defense, and this is the action complained of.

Treating the affidavit and the supplemental affidavit as together constituting the defendants’ statement of their defence, we find it to consist of the following particulars :

1st. An allegation that the defendants bought from Kingston a car load of roofing paper for eight hundred dollars, all of which is paid except these two notes.

2. That such sale was made with an express agreement that the paper “ should be of the quality of the sample sent and upon which the order was originally based.”

3. That the paper was not of such quality and that this could not be discovered until the paper was subjected to the process by which it was saturated with tar.

4. That the quality ordered, and which it was agreed this car load should be, would absorb, in the process of ' saturation, three thousand pounds of tar for every two thousand pounds of paper.

5. That this paper was so hard and damp that it would not absorb more than about two-thirds of what was necessary to make it correspond with the sample, with the express agreement of Kingston and with the requirements of the trade.

6. That the loss by reason of the defective preparation of the paper was equal to thirty per cent, of its cost, or more than the plaintiff’s claim.

The facts, thus set up by the defendants, constitute a good defence. If proved, the legal plaintiff ought not to recover, and, for the purposes of this motion, we are to assume the ability of the defendants below to prove the facts as they have alleged them to be. It was error, therefore, to enter the judgment complained of. The use plaintiff is entitled to stand on no better ground than the payees. He is not averred to be an endorser or purchaser in the usual course of business of the notes sued on; while the defendants distinctly aver, in their affidavit, that he acquired his interest in the notes after their maturity and with full notice.

The judgment is reversed, the record remitted and a procedendo awarded. W. S. W.  