
    Armor Lithographing Co., Limited, v. Allegheny Machine Co.
    Plaintiffs’ affidavit of claim, in an action of assumpsit, brought May 14,1887, averred that they had made a contract of sale and had delivered to defendants an engine and boiler, on Nov. 1,1886, to be paid for in instalments, the first of which was to be paid in two weeks from date of satisfactory working of engine; that defendants refused to pay, or say whether the engine and boiler were satisfactory or not; that on April 30,1887, the plaintiffs notified the defendants that the latter must either pay for them or permit plaintiffs to remove them on or before May 4,1887, or plaintiffs would bring suit. The affidavit of defense admitted the contract of sale, but averred that plaintiffs agreed to put up one fifteen horse power engine and boiler, and to keep the machinery in first-class working order for two years from date of starting the engine, without cost to defendants; that the working of the engine was irregular; that it had at no time developed a power equal to fifteen horse power, and never had worked in a satisfactory manner; that plaintiffs had failed and refused to keep the engine in first-class working and running order for two years; that the engine could not he made to run properly, and would have to be replaced by a new one; and that defendants were ready and willing to pay plaintiffs the contract price upon their carrying out their contract. The court below entered judgment for want of a sufficient affidavit of defense. Subsequently the defendants presented a petition alleging more extended grounds of defense, praying that judgment be opened, and they be admitted to a defense, which prayer was refused. Held, that the affidavit of defense was insufficient.
    
      Query, whether or not the petition to open the judgment was treated as a supplemental affidavit of defense, and considered in this case.
    Oct. 31, 1888.
    Error, No. 219, Oct. T. 1888, to O. P. No. 1, Allegheny Co., to review judgment for want of sufficient affidavit of defense, in an action of assumpsit.
    The affidavit of claim contained tbe following averments: The Allegheny Machine Co. made and delivered a Curtis Long high-speed engine, and set up the same, and boiler connected therewith, and all necessary fittings, in the building of defendants, at their request, for the stipulated price of $475, on or about Not. 1, 1886, to be paid as follows : $150 in two weeks from date of satisfactory working of engine; $150 in two months, and $175 in six months, from first payment. The Allegheny Machine Co. sold out to ¥m. B. Orr & Co., who, sometime in the fall of 1886, completed the work contracted for by their predecessors, and complied fully with the conditions of the contract. The defendants have been using the engine and boiler ever since, but have refused, upon one pretext or another, to make the required payment, or to say whether the engine and boiler were satisfactory or not; and, although the plaintiffs offered either to remove the boiler and engine or to make them satisfactory if they were not so, yet defendants would neither agree to accept and pay for the same, nor allow them to be removed. After urging defendants to take some action, and waiting upon them since Nov., 1886, the plaintiffs finally notified defendants, on April 30, 1887, that they must either pay for the engine and boiler, or permit the plaintiffs to remove the same on or before May 4 inst. or they would hold defendants for the full contract price and bring suit, to which notice defendants made no reply.
    It is stated by plaintiffs in error, in their paper book, and not denied by defendants in error, that suit was brought May 14, 1887, but the date does not appear by the record printed.
    The affidavit of defense is as follows:
    “Albert E. Frank, manager, secretary and agent in this behalf of defendant, being sworn says, that the defendant is not indebted to plaintiff in any sum whatever.
    “Deponent says it is true defendant .purchased from plaintiff a boiler and engine for the sum of $475.00, but deponent says that such purchase was made under a written contract between plaintiff and defendant, whereby plaintiff agreed to ‘put up in complete working and running order and ready for operation on or before Oct. 1st, 1886, one fifteen-horse power Curtis Long high-speed engine, also one twenty-horse power upright steel boiler, all material and workmanship to be of the very best quality.’ Plaintiffs also agreed ‘ to keep said machinery in first-class working and running order for two years from date of starting the engine, without any cost to defendant,’ and that said sum of $475.00 was to be paid as stated by plaintiff.
    “ Deponent says that said engine does not now, and never has worked in a satisfactory manner; its working is irregular, and it has at no time developed a power equal to fifteen-horse power, by reason • whereof defendant has repeatedly been compelled to close down a whole or part or its works.
    “And plaintiff has failed and refused to keep said engine in first-class working and running order for two years, and deponent avers and believes that said engine cannot be made to run properly and perform the service which plaintiff agreed it should perform, and that said engine will have to be replaced by a new one ; wherefore, deponent avers that defendant is not now indebted to plaintiff in any sum whatever, but defendant has been, and is, ready and willing to pay plaintiff said sum of $475.00 upon its carrying out its said contract.”
    Plaintiffs thereupon, on June 23, 1887, entered a rule to show cause why judgment should not be entered for want of a sufficient affidavit of defense. Upon this rule, after argument, judgment was entered against the defendants on September 13,1887, for $484.50.
    Subsequently the defendants filed the following petition :
    “ The petition of defendant respectfully represents : That plaintiffs, owning a patent for a new kind of engine, solicited defendants to buy a boiler and engine, and, as the engine was only experimental, agreed that defendants might have a trial of it, and need not pay for it until it was entirely satisfactory. Officers of defendants’ company were invited by plaintiffs to inspect a similar engine in their own shop. This was done, and the engine there was found to work irregularly, or jerky, producing a jar, or what is called among mechanics a £ knock ’ or £ pound.’ Plaintiffs represented that they could avoid this in making the next one. Accordingly, defendants agreed to try this engine, and pay for it, if, on trial, it was satisfactory to them.
    “ Upon its being made and set up in defendants’ works, the new engine was found to be deficient and irregular in power, and to contain the same knock as the preceding one. Plaintiffs as early as December, 1886, urged the defendants to continue the trial, and that they would eventually get the knock out, and have it running smoothly. Tins, plaintiffs, and various of their employes tried at repeated times to do, and, whilst some improvement was secured, it did not work satisfactorily to either plaintiffs or defendants.
    “At the date of the alleged refusal to allow plaintiffs to take the engine (not the engine and boiler) away, spoken of in the affidavit of claim, Mr. Orr, and another member of plaintiffs’ firm, came to defendants’ works, and said they wanted to take the engine away to their shops to fix it.
    “Albert E. Frank, manager of defendants’ company, replied, that if the knock could be taken out there, he could not let it go, as there was work then on the presses, which must be run through, but that unless they could assure him that by taking the engine to their shops they could take the knock out entirely, they could take the engine, but they need not return it, as they would not have the engine as it was. To this, Mr. Orr replied: £ I am not a practical machinist, but I do not think it can be taken out.’ His associate, who had set the engine up, said, in his opinion, it could be done, if taken back to the shop, and they left, apparently differing among themselves as to the possibility of making the engine a success, and without any request or refusal other than the above.
    “ The next heard from plaintiffs in the matter, was a letter from their attorney, W. IL Jennings, dated April 30, 1887, demanding that by May 4, defendants should either pay for the engine and boiler, or allow it to be removed. Defendants were willing and ready to allow plaintiffs to remove tbe engine and boiler, but they did not come or offer to take them, but brought suit without ever attempting or requesting to be allowed to do so, and at the very time suit was brought a proposition made by plaintiffs was pending, to keep the boiler and pay for it, a certain portion of the entire sum named in the contract of purchase, and the members of defendant company had met them on this proposition, when they were informed that suit had been brought.
    “Defendant company further represents that plaintiffs have abandoned all effort successfully to make said engines, and have wound up their business, and plaintiffs immediately on receipt of Mr. Jennings’s letter, made arrangements, and did, in a few days, purchase a new engine, and remove plaintiffs’, so they could have it, and under the present judgment of court they will be compelled to pay a full price for an engine which they can neither use, sell nor repair.
    “ Whereupon defendants pray, that the judgment in above case may be opened, and defendants admitted to a defense, and in the meantime, that execution be stayed in said proceedings.”
    It is stated in the paper books that the court below opened the judgment and treated the above petition as a supplemental affidavit of defense, but it does not so appear by the docket entries as printed.
    The opinion of the court was as follows:
    “I think the judgment for want of a sufficient affidavit of defense properly entered; and I do not find anything in the affidavit filed with the petition to open the judgment, such as should have prevented judgment had it been filed in due time as a supplemental affidavit. The affidavit of claim is distinct and concise and susceptible of a distinct answer. If it was not true, it should have been answered, so that the denial would have been equally clear and distinct. But there is, perhaps, enough in it if (after notice of plaintiff that defendant must either pay for the engine and boiler or permit plaintiff to remove the same on or before May 4) the law devolved the duty upon plaintiff of again going, or sending, to defendant, and demanding delivery before he could bring a suit. I do not think this the law; it seems to me that after this notice it became the duty of defendant to notify plaintiff what it proposed to do and that upon failure plaintiff had a right to assume a refusal to do either. Prayer of defendant to have judgment opened is refused.”
    
      The assignment of error was as follows: “ The court erred in entering judgment against defendant upon the affidavits of claim and defense.”
    
      W. F. McCook, for plaintiffs in error.
    The ruling of the court was made solely on the principle of conditional sales, as ruled in Bohn v. Dennis, 109 Pa. 504, and similar cases. Our position is that this is an absolute sale, vesting the title of the boiler and engine in the defendants at the time of sale, with a stipulation to be paid for when it had shown a certain amount of power, and worked satisfactorily. The contract right of the plaintiffs was to keep the engine, and demand that plaintiffs comply with their contract. The right of the vendor to have his price depended on a fact denied in the affidavit of defense, and not upon any averment or election of the purchaser as to that fact.
    No presumption of waiver of defects or acceptance of the engine can arise from the fact that the defendants retained the engine, and refused to pay for it, because it was expressly agreed that they should do so.
    The four days allowed was not a reasonable time within which to have the engine and boiler ready for removal out of the building, even if the vendors had the right to demand back the engine or have the price. At best, the court should have left it to the jury to determine whether the time given was, under the peculiar circumstances, reasonable.
    If the simple failure of defendants to reply to the letter was an election to accept the engine, it was an election as of the date named by him, viz: May i, 1887, and therefore, as the first instalment became due two weeks thereafter, and suit was brought ten days thereafter for the whole claim, the suit was premature.
    
      W. K. Jennings, for defendants in error.
    The court below entered judgment, not on the principle of conditional sales, but because the affidavit of defense was not responsive to the affidavit of claim, and left its material averments undenied.
    The affidavit of defense nowhere averred that the defendants had informed the plaintiffs at any time prior to the bringing of the suit that the working of the engine was not satisfactory.
    No time was specified within which the test was to be made, and therefore the law would presume that it must be done within a reasonable time.
    It was the defendants’ duty to signify whether they were satisfied or not, and a neglect to do so implied an approval. Hickman et al. v. Shimp, 109 Pa. 16; Dewey v. Erie Borough, 11 Pa. 211.
    The whole question in this case is as to whether there was notice of dissatisfaction, not as to the fact of -dissatisfaction.
    Jan. 7, 1889.
   Per Curiam,

The affidavit of defense was, in this case, defective, in that it was evasive, and not responsive to the plaintiffs’ affidavit of claim.

The judgment is affirmed. W. T. B.  