
    Williams v. Sawyers, Appellant.
    
      Affidavit of defence—Sale—Agent.
    
    Plaintiff sued to recover the price of melons sold to defendants through their agent on the authority of a telegram addressed to the agent by defendants, as follows: “ If stock good size and cheap, buy two cars.” Defendants in their affidavit of defence averred that the agent to whom the telegram was addressed had no authority to buy for the account of defendants, excejff that contained in the telegram; that the melons forwarded by plaintiffs were small and of an inferior quality, and not such as were called for in the telegram; that defendants refused to receive them, and communicated this fact to plaintiffs, but that plaintiffs refused to order a return of the melons, and defendants thereupon sold the melons, for a sum sixty dollars less than the amount claimed by plaintiffs. Held, that it was not error to make absolute a rule for judgment for want of a sufficient affidavit of defence.
    
      Argued Jan. 24, 1893.
    Appeal, No. 58, Jan. T., 1893, by-defendants, James Sawyers et al., from order of C. P. No. 2, Phila. Co., Sept. T., 1892, No. 867, making absolute rule for judgment in favor of plaintiffs, G. D. Williams et al.
    Before Paxson, C. J., Sterrett, Green, McCollum, Mitchell and Dean, JJ.
    Rule for judgment for want of sufficient affidavit of defence in assumpsit for goods sold and delivered.
    Plaintiff’s statement was in part as follows:
    “ The plaintiffs claim from the defendants the sum of $174.78, with interest from August 8, 1892, the price of a car load of melons sold and delivered to the defendants.
    “The said melons were purchased on August 6, 1892, at Norfolk, Virginia, by the defendants through their agent, O. N. Christian, who was authorized by them by telegram to make the purchase. The following is a copy of the said telegram:
    “ ‘ Aug. 1,1892, Philada. Pa. O. N. Christian, Care Williams Bros. If stock good size and cheap, buy two cars.
    (Signed) “1 Sawyers & Co.’ ”
    “ The plaintiffs shipped the said melons to the defendants at Philadelphia, in the defendants’ name, where they were received by the defendants on August 8, 1892, and the defendants afterwards sold and disposed of them.”
    The affidavit of defence averred as follows :
    “ Defendants did not authorize O. N. Christian to buy the car load of melons, for the value of which suit is brought by plaintiffs. O. N. Christian, who is mentioned in plaintiff’s statement, was not the general agent of defendants for the purpose of buying, and had no authority whatever to buy for the account of defendants, except that contained in the telegram set forth in plaintiffs’ statement ,• and before the date of the alleged purchase from plaintiffs the said O. N. Christian had reported to the defendants that he could not buy of plaintiffs melons of the kind mentioned in the said telegram.
    “ The melons which were forwarded by plaintiffs and for •which they claim to recover in this suit were small melons and of an inferior quality, and not such as were called for in said telegram. The defendants refused to receive them and com■municated this fact to plaintiffs. Plaintiffs thereupon refused to order a return of the melons, and defendants thereupon sold the said melons for the aceount of the plaintiffs for the sum of one hundred and sixteen dollars and twenty-six cents.”
    Rule for judgment absolute. Defendant appealed.
    
      Error assigned was in making rule absolute.
    
      E. Clinton Rhoads, John Cromwell Bell with him, for appellant, cited:
    Hays v. Lynn, 7 Watts, 525; Louchheim v. Davies, 148 Pa. 499 ; Dripps’s Assignees, 4 Clark, 87; Loudon Savings Fund v. Bank, 86 Pa. 498; Union Refining Co. v. Bushnell, 88 Pa. 89; American Life Ins. Co. v. Schultz, 82 Pa. 51; Gestring v. Fisher, 46 Mo. Ap. 603; Saginaw R. R. v. Chappell, 22 N. W. R. 278; Halloway v. Jacoby, 120 Pa. 583.
    
      J. K. Shoemaker, for appellees, not heard, cited:
    Hicks v. Hankin, 4 Espinasse, 114; Bryant v. Moore, 26 Maine, 84; Story, Agency, §§ 118, 252; Hatch v. Taylor, 10 N. H. 538; Chapman v. Morton, 11 M. & W. 534; Johnson v. Jones, 4 Barb. 369; Fogel v. Brubaker, 122 Pa. 7; Dailey v. Green, 15 Pa. 118; Freyman v. Knecht, 78 Pa. 141; Benj. on Sales, Kerr’s ed., § 935.
    February 6, 1893:
   Pee Cueia.m,

Judgment affirmed.  