Raymond Jenkins, Philadelphia, for appellant.
W. K. Ravetz, Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, and Wright, JJ.
[ 173 Pa. Super. Page 618]
In this action of assumpsit the complaint alleged,
[ 173 Pa. Super. Page 619]
inter alia: (1) That on or about July 13, 1944 plaintiff by his employee entered into an agreement with defendant whereby plaintiff agreed to deliver 1042 1/4 yards of 'khaki herringbone twill cloth' to defendant and to pay defendant for cutting said cloth; (2) that defendant agreed to cut the cloth and 'redeliver' the same to plaintiff; (3) that plaintiff delivered the cloth to defendant; (4) that though plaintiff thereafter demanded return of the cloth, defendant refused to return the same or pay for it; and (5) that 'the fair market value' of the cloth at the time of the transaction was 38 cents per yard, or a total of $395.25.
Defendant filed an answer, new matter and a counterclaim. The effect of the pleading was to admit receipt by defendant from plaintiff of 1042 1/4 yards of cloth, but to assert that delivery was made under an agreement different from that alleged by plaintiff. According to defendant, the said cloth was delivered to him 'in the usual course and practice of business relations between the parties, whereby, subsequent to the receipt of the said goods the custom had been that the defendant proceeded to cut, make and time the goods into coveralls at an agreed price per dozen, which were then resold to the plaintiff by the defendant'. Defendant alleged further that after he received the goods from plaintiff and prior to the cutting thereof 'the defendant informed the plaintiff that he did not make the said goods into cover-alls, since the plaintiff was indebted to the defendant in the sum of $400.00'. And finally it was alleged that defendant informed plaintiff that he was 'setting off and applying' the amount of $395.25 'as a credit against plaintiff's account with the defendant' and plaintiff agreed to the set-off.
When on May 17, 1951 the case was called for non-jury trial in the court below, the defendant was permitted to make certain amendments in his pleading,
[ 173 Pa. Super. Page 620]
the effect of which was to admit the receipt of only 'approximately 540' yards of goods and to strike from one paragraph a statement to the effect that the goods were delivered to defendant 'on invoice * * * for a total price of $395.25'. Plaintiff pleaded surprise and the case was continued.
The case came on for trial on April 1, 1952 and again the defendant was permitted to amend. The pleading in its final form admitted receipt of '540 yards of material at the price of 38 cents per yard for a total of $205.20', and denied that any sum of money was due plaintiff but on the contrary demanded judgment against plaintiff in the sum of $195.90. The trial proceeded before a judge sitting without a jury, who on April 14, entered the following verdict: 'As to the claim of the Plaintiff against the Defendant, the Court finds for the Defendant and as to the Counter Claim of the ...