Leuders v. Munyon Homœopathic Home Remedy Co.

Opinion by

Henderson, J.,

This appeal is from the judgment of the court below holding the affidavit of defense to be insufficient. The affidavit does not deny the accuracy of the plaintiff’s ¿c-count but contains a statement of a counterclaim from which it appears that the plaintiff had entered into a contract in writing with the defendant for the sale of five thousand pounds' of soap perfume the principal part of which the plaintiff had neglected and refused to de *6 liver, by reason -whereof the defendant was compelled to procure a supply from another dealer at an increased cost of one dollar a-pound. The affidavit is, therefore, the statement of a cause of action to be used as a counterclaim against the plaintiff’s account and the question for determination is whether a cause of action is sufficiently set forth by the defendant. It is not necessary, therefore, to consider whether the essentials of an affidavit in denial of the plaintiff’s right of action have been disclosed. If the defendant has answered with a declaration of a state of facts which would support an action he has met the issue tendered by the plaintiff and is entitled to a trial. The contract between the parties is set out in the affidavit. It is also set forth that 109 pounds of the perfume had been delivered on the contract and that the plaintiff had refused to- further perform alleging that some of the ingredients of the material could not be obtained from Europe and that a number from Germany could not be obtained for a great length of time and that the plaintiff, therefore, could not fill the contract if it wanted to. It is further set forth that by reason of this default of the plaintiff the defendant -was compelled to go into the open market and buy its perfumes at an increased price of one dollar a pound, the additional cost to the defendant amounting to $-1,891, for which the defendant claimed a certificate in its favor.

The court below' based its judgment on three conclusions : (1) That the defendant’s admission that he purchased the goods as set forth in the plaintiff’s statement is in effect an acknowledgment of a default as to payment according to the terms df the bill and that therefore the plaintiff had a right to rescind. It is to be observed, however, that nothing in. the plaintiff’s statement or the statement of counterclaim show's that the plaintiff rescinded the contract on that account. On the contrary, the counterclaim show's an entirely distinct reason for the failure to perform its contract. Moreover, it appears from the pleadings that former sales had been *7 made by tbe plaintiff to tbe defendant under a contract and that the plaintiff bad not completed delivery under that contract and it would seem from tbe plaintiff’s letter of April 24, 1914, quoted at length in tbe counter-statement that tbe plaintiff treated a part of tbe shipments for which payment is sought as applicable to that contract leaving only 109 pounds to apply on tbe contract of September 3, 1913. Under tbe last contract shipments were to be made: “In about equal proportions over tbe life of this contract; sellers not to be held liable for larger deliveries than would be proportionate if tbe quantity were entered in equal monthly or quarterly shipments.” No provision for time or manner of payment is made in this contract except in tbe following form:

“Terms: As usual.” If all of tbe shipments for which tbe plaintiff claims were to apply on tbe old contract except 109 pounds it does not appear that tbe plaintiff performed according to tbe terms of tbe agreement set up by tbe defendant and in that case a default by tbe defendant could not be successfully alleged. Whether tbe plaintiff could sustain a rescission of tbe contract on Avbicb tbe defendant relies for tbe reason that prompt payment bad not been made for tbe shipments set forth in tbe statement of claim it is not now necessary to consider for there is no allegation in tbe case that it made that a reason for refusal to deliver according to tbe contract. We think, therefore, tbe court was not warranted in assuming that there bad been a breach of tbe contract by tbe defendant and that there bad been a rescission by tbe plaintiff on that account.

Tbe second reason for entering tbe judgment was that tbe plaintiff’s counterclaim referred to1 a letter from tbe plaintiff to tbe defendant dated August 11,1914, without attaching a copy of tbe letter and that paragraph three of the counterclaim contains a quotation from another letter dated August 15,1914, without quoting other matters apparently contained in tbe letter. An examination *8 of the counterclaim shows that the reference to the letter in the second paragraph and the quotation from another letter in the third paragraph are statements of the source of the defendant’s information on which he bases his counterclaim. They relate to- evidence that might become material on the trial of the case but the counterclaim is good in this respect Avithout regard to these parts of the statement. There is a specific averment that the plaintiff failed and refused to deliver any part of the goods remaining due to the defendant under their contract; of September 3, 1913, and that by reason of the plaintiff’s obligation the defendant was .compelled to supply the goods by purchase in the open market.

The final criticism of the affidavit is that the Practice Act of 1915 has not been complied with in that it does not aver when or in Avhat market or from what persons the defendant bought goods to take the place of those the plaintiff failed to deliver. It is sufficient to say with reference to the Act of 1915 that it did not take effect until the first of January, 1916, and the statement of claim and the affidavit of counterclaim Avere filed prior to that date. The sufficiency of the counterclaim must be determined therefore, by the requirements of the law at the time it was filed. It was necessary for the defendant to make a concise statement of his demand; to give the date of the promise on Avhich his demand is founded; to state the-whole amount he believes justly due him from the plaintiff and to accompany his statement with a copy of the contract on which his claim is based. All this has been done by the defendant in his affidavit to which he has added the breach of contract occasioning his cause of action. It is not necessary that he state the evidence on which he relies. A statement which furnishes information of the plaintiff’s claim so- that the defendant can prepare for and present his defense is suffi-. cient where the statutory directions as to the substance of the statement are complied with. The character of the defendant’s counterclaim is made clear in his aver *9 ment that the plaintiff failed to comply with his obligation in its performance and that by reason of this default it was necessary for the defendant to go into the public market and procure the merchandise which the plaintiff had undertaken to furnish him. The extent of the default and the exact amount of the damage arising from the difference between the price for which the goods were contracted and that which the defendant was compelled to pay are plainly set forth. The price which the defendant paid is averred to be that for which they were sold in the open market and that is prima facie the value of the goods. Whether the evidence will sustain the defendant’s averments is a matter to be ascertained at the trial, but we regard the counterclaim as a sufficient statement of a cause of action to prevent judgment for want of a sufficient affidavit of defense.

The judgment is reversed with a procedendo.