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MARNET HOSIERY MILL v. GRECO (07/17/52)

SUPERIOR COURT OF PENNSYLVANIA


July 17, 1952

MARNET HOSIERY MILL, INC.,
v.
GRECO

COUNSEL

Thomas F. Burke, Pittston, for appellant.

John R. Reap, Jr., Reap & Reap, Pittston, for appellee.

Before Rhodes, P. J., and Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Arnold

[ 171 Pa. Super. Page 169]

ARNOLD, Judge.

Marnet Hosiery Mill, Inc. brought this action of assumpsit to recover for unfinished hosiery sold the defendant at $7.45 per dozen. The defendant filed an answer alleging a breach of warranty; that the goods were of an inferior quality, and that the defendant immediately reported that fact to the plaintiff. His answer stated his willingness to pay $4.00 per dozen for the merchandise. Under Pa.R.C.P. No. 1017, 12 P.S.Appendix, the plaintiff filed preliminary objections to the defendant's pleading, and asked for a more specific answer and for judgment.

The court below dismissed the preliminary objections and the plaintiff took an appeal, which must be quashed.

The overruling of an objection in the nature of a demurrer is not a final order from which an appeal lies, nor is the refusal of the court to require a more specific answer. Cases cannot be brought on appeal in installments, and are not reviewable until final judgment is entered, except in a few types of cases of which this is not one.*fn1 See Leedom v. Philadelphia, Bristol & Trenton Street Railway Co., 217 Pa. 278, 66 A. 361; Cherry Township v. Sullivan County, 30 Pa. Super. 502.

If we treat this as a matter of an appeal, under the Act of 1874, 12 P.S. §§ 1097, 1098, from the refusal of the court below to enter judgment for want of a sufficient affidavit of defense, the result is the same. In the first place the courts will not enter such a judgment except in a clear case, and never where the question

[ 171 Pa. Super. Page 170]

    turns on the informality of the pleading. Here the defendant pleaded that he 'immediately' notified the plaintiff of the inferior quality of the goods. See §§ 49, 69 of The Sales Act, 69 P.S. §§ 259, 314. The appellant is not injured by such a pleading. If the plaintiff did not receive any notice that is its defense. If it did receive notice, it knows when it was given.

The question will be determined on the merits when final judgment is entered. We suggest, however, that the defendant amend and amplify his answer by describing more fully what is meant by the phrase that he 'immediately' gave notice of the alleged breach of warranty.

Appeal quashed.

HIRT, J., absent.


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