Appeal, No. 179, Oct. T., 1964, from judgment of Court of Common Pleas of Lancaster County, Dec. T., 1962, No. 28, in case of General Mills, Inc. v. L. M. Snavely. Judgment reversed.
Mark R. Eaby, Jr., with him Eaby and Eaby, for appellant.
John T. Barber, with him Barley, Snyder, Cooper & Mueller, for appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 203 Pa. Super. Page 164]
In this assumpsit action the court below entered judgment on the pleadings in favor of the plaintiff, General Mills, Inc., and against the defendant, L. M. Snavely. The latter has appealed. It will be necessary to set forth the procedural situation in some detail.
In its complaint, General Mills sought to recover on a book account for poultry feed sold and delivered to Snavely. The exhibit attached to the complaint contains entries of debits and credits from May 31, 1961 to July 17, 1962, and shows a balance due of $3,323.72. Snavely filed an answer containing new matter and
[ 203 Pa. Super. Page 165]
two alternative counterclaims. The new matter alleged was that, on May 25, 1962, the parties had executed a mutual release.*fn1 The first counterclaim alleged that, excluding items prior to the date of the release, the book account showed a balance due Snavely of $388.99.The alternative counterclaim alleged that, disregarding the release, the feed was not as warranted; and that, due to its inferior quality, Snavely was required to feed seven thousand capons for twenty instead of fifteen weeks, during which additional period the market
[ 203 Pa. Super. Page 166]
dropped ten cents a pound causing a loss of $4,900.00 in sales price, plus $2,500.00 for extra feed, total claim $7,400.00. General Mills then filed preliminary objections in the nature of a demurrer to the new matter and a motion for judgment on the pleadings, asserting (1) that the release in question discharged only its liability to Snavely; (2) that the general denials in the answer constituted admissions under the provisions of Pa. R.C.P. No 1029; and (3) that both causes of action pleaded by Snavely were barred by the release.
We will first consider the sufficiency of Snavely's denials in the affidavit of defense.*fn2 The position of General Mills in its preliminary objections was that Snavely's counterclaims manifested knowledge or information sufficient for him to form a belief as to the truth of the averments in the complaint, wherefore his denials did not come within the purview of subsection (c) of Pa. R.C.P. No. 1029, and consequently must be given effect as admissions under subsection (b) of said rule. The court below reasoned that, while alternative pleadings ...