#### Laferty *v.*Sheriff.

In an action of assumpsit, plaintiffs claimed in their statement that defendants owed them for the price of a boiler sold and delivered, and for work and materials furnished for the erection of the same, and that, “ at the time said indebtedness was contracted, said defendants were then doing business as a general partnership, and had not then become a limited partnership association.” The defendants, in their affidavit of defense, averred that “the defendant company is not a general partnership, as they will prove on trial, but a limited partnership that the plaintiffs had delivered to them, prior to the delivery of the permanent boiler, a temporary boiler, which was defective in construction, and that, by reason thereof, their work had been delayed and material in-, juredand that damages had been suffered by them to an amount exceeding plaintiffs’ claim, stating the amount approximately. *Held,*that the affidavit of defense was evasive and insufficient.

Oct. 22, 1888.

Error, No. 27, Oct T., 1888, to C. P. Allegheny Co., to review an order making absolute a rule for judgment for want of a sufficient affidavit of defence in an action of assumpsit by W. J. Sheriff, trading as J. B. Sheriff, Son & Co. against Charles E. Laferty et al., partners, doing business as a general partnership, under the firm name of the Globe Chemical Co., Limited. Clark, J., absent.

Plaintiff’s statement of claim averred:

“ The said defendants, Charles E. Laferty, John Scully, Jr., *203William Tait and A. McD. Scully, partners, doing business as a general partnership, under the firm name of The Globe Chemical Co., are justly and legally indebted to him, the said plaintiff, in the sum of $865.91, with interest thereon from June 11, 1887, for goods and material sold and delivered by said plaintiff to said defendants, and work and labor done by said plaintiff for said defendants, and moneys expended by plaintiff for defendants, and at their instance and request, as itemized and particularly set forth in plaintiff’s book-account, a copy of which, taken from plaintiff’s book of original entries, being hereto attached and made part hereof. That said goods and material and work and labor were furnished and done in fitting up the works and manufactory of said defendants, on Bayard street, Allegheny city, in said county, for the manufacture of acids or restoration of spent acids, and, on or about April 2, 1887, defendants purchased a steam boiler, 36 inches by 7 feet, and one steam pump, for the price of $335, for that purpose, and afterwards, before delivery thereof, changed their order for a steam boiler of larger dimension, viz: 40 inches by 8 feet, for an increased or extra price of $50 more, to wit, for $385, and from time to time thereafter defendants ordered other material and goods, and work and labor done for, and in the fitting out of their said manufactory; and also ordered one steam pump to be delivered at the Bear Creek Refinery, on the Allegheny Valley Railroad, all of which goods and material, as particularly set forth in said book-account, said plaintiff sold and delivered as he was ordered by defendants, and did the work and labor necessary to be done in fitting them up and putting them in working order; and said plaintiff also paid the moneys and expenses charged in said account for the defendants, for charges of conveying and transporting said goods and material, and paying for the transportation of his employees in conveying them to and from the manufactory and work of defendants. The contract for the said goods and material and work and labor and expenditure of moneys between said plaintiff and defendants was verbal and not in writing, except as respects the boiler before mentioned, concerning which plaintiff’s proposition to furnish it is in writing, a copy of which is •hereto attached.

“ That there was no contract price for all of said material and goods so sold and delivered by plaintiff to defendants, except for said steam boiler and steam pump, and for such lead pipe as might be ordered, the price for which was to be 6^ cents per pound, and for sheet lead 7^ cents per pound. That plaintiff has charged the defendants the contract price for goods and material, where there was a contract price; and for all other goods and material, for which n o contract price was agreed on, the fair market value thereof; and, for work and labor done, the usual and customary price and charges paid for such work and labor in the trade; and, as to the moneys paid for expenses, has charged the defendants only for what he actually paid out for them in conveying and transporting said goods and *204material to them, and also the workmen to do the work and labor, and only for such expense as was necessarily incurred for them. That, at the time said indebtedness was contracted, said defendants were then doing business as a general partnership, and had not then become a limited partnership association.”

The defendants filed an affidavit of defense, in which they averred: “ That the defendant company is not a general partnership, as they will prove on trial, but a limited partnership, under the laws of the state of Pennsylvania in such case made and provided; and, as to the plaintiff’s claim and copy of account filed, deponent further says, the defendants have to the same a just and legal defense as to a part and portions of said claim, the nature, character, &c., of which defense is the following, viz: The plaintiff sold, on or about April 21, 1887, to defendants, and was to deliver same immediately, a boiler 36 inches by 7 feet, but failed to deliver such boiler, but delivered temporarily a boiler 36 inches by 6 feet, which was to be used until plaintiffs would or could deliver a boiler 36 inches by 7 feet, according to his contract — which delivery was to be made in a few days — this boiler so delivered (36 inches by 6 feet) was so defective, by reason of leakage, that defendants were unable to operate their works properly and profitably, as they otherwise could and ought to have done, and, from on or about April 21, 1887, when said 36 x 6 boiler was delivered to defendants, said boiler, by reason of said defects, failed to make sufficient steam to run said works, and by reason thereof work was delayed, and expenses incurred in payment of wages to workman, injury to materials to be used in defendant’s works, to wit, sledge acid, which must be used at once, or it looses strength, and waste of said acid in consequence of said delay, from said 21st of April, 1887, to. on or about the 15th day of May, 1887, when the plaintiff wholly failed to deliver a boiler as per contract, having promised day by day between said dates to deliver said boiler according to contract, and failed so to do. Then, on or about the 15th of May, 1887, said plaintiff agreed with the defendants to remove the 36 inches by 6 feet boiler, so temporarily put in defendants’ works, and place then a boiler 36 by 8 feet in the place and instead of the boiler which he had contracted to furnish, he alleging that he was unable to furnish the boiler he had contracted to deliver, and would furnish one 36 by 8 feet; and that, by defendants accepting said boiler, he would make things all right; and to get the works in running order, and out of the delay and loss sustained, defendants agreed to let plaintiff place the 36 inches by 8 feet boiler in their works, which was done., Deponent avers that plaintiffs ought not to have charged $50 extra for said boiler delivered, or any sum of money; and that he should pay and is in law bound to pay defendants a large sum of money as damages and loss in and about their said works, sustained and caused by plaintiff’s failure to fulfil his contract and deliver a sound boiler, 36 inches by 7 feet, amounting to, as deponent *205•believes and expects to prove on trial, from $600 to $700, directly-sustained by said defective boiler and delays and promises from day to day to fulfil this contract.”

The affidavit then specified particular defence to a number of small items, for labor and materials, and continued:

“ All the items charged June 4th, amounting to $12.89, are ihegal and should not be charged, being done in and about a pump for which plaintiff has made an original charge, and was done in removing the pump to make it work — it neither worked as originally put up, nor does it work since refitted. On account of said defective pump, defendants suffered a loss of some $275.00, in that it would not work, and defendants had to shut down their business, losing time and money, and had to purchase acids from other parties, and the acids spoiled on hands and was wasted, making a total loss.

“ Deponent, further, in conclusion, says, the defendant’s damages and reductions to be made in the premises, will amount to or exceed the whole amount of his claim in this case, as he expects to prove on trial.”

The court made absolute a rule for judgment for want of a sufficient affidavit of defense, and entered judgment for $801.50, the whole amount of the claim, less $64.38, the aggregate of the deductions claimed on the items of labor and material furnished.

*The assignments of error*specified the action of the court, 1, in entering judgment generally against the defendants as co-partners, as claimed in statement of claim, and distinctly denied in the affidavit of defense, quoting the language of the affidavit; 2, in entering judgment notwithstanding the facts alleged in the affidavit of defense charging loss on account of delay in delivering the boiler, and the loss süstained by the defendant company in temporarily using the 36 x 6 boiler which leaked and failed to make sufficient steam, as claimed, amounting to $600 or $700; and, 3, in assuming to determine the several matters of fact set up by defendants, all of which arose out of the main contract to furnish a good and sufficient boiler, etc., and in entering judgment sustaining plaintiff’s exceptions.

*A. M. Watson,*for plaintiff in error.

The affidavit of defense contained a distinct denial that the defendants were not a general partnership.

It also disclosed such failures and delinquencies on the part of the plaintiffs as would warrant a jury in finding that they should not recover at all. We refer especially to allegations as to loss occasioned by the defective boiler and the pump for acids, specifying particularly the amounts of loss, with the concluding averment that it is expected to prove on the trial that the damages will amount to or exceed the whole amount of the claim.

*Morton Hunter,*for defendant in error.

The affidavit of defense *206does not deny that the defendants were general partners at the time the contract was made.

Nov. 5, 1888.

The claim of set-off for damages was not well founded, the facts set forth in the affidavit failing to show any legal liability of the plaintiff therefor.

The sale and delivery of the boiler, pumps and other articles was not denied; neither that the work and labor was done, nor the fairness of the price and value charged, nor that the goods were not of the kind and quality ordered; it was not alleged that the goods were to be of, and failed in being, any fixed standard, or test, or to be capable of, and failed in performing, any defined duty or work, nor that there was any warranty, nor notice to plaintiff below of any breach of contract, nor refusal to accept the goods, nor was any valid defence whatever raised.

Per Curiam,

A proper disposition was made of this case in the court below. The affidavit of the defendants was evasive, and in no particular exhibited a good defense' to the plaintiff’s claim, except as to those items which were allowed by the court.

The judgment is affirmed.